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CNN TONIGHT

North Carolina Legislature Fails to Repeal Bathroom Bill; Manhunt for Berlin Terror Suspect; Trump's Controversial Mix of Family and Politics; Bill O'Reilly's Remarks on Electoral College Sparked Outrage. Aired 11p-12a ET

Aired December 21, 2016 - 23:00   ET

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


ANNOUNCER: This is CNN breaking news.

[23:00:47] DON LEMON, CNN ANCHOR: Intense manhunt in Germany for the suspect wanted in connection with the terror attack in Berlin that killed 12 people.

This is CNN TONIGHT. I'm Don Lemon.

German authorities know his name and his face. They're searching for a 24-year-old native of Tunisia, said to be armed and dangerous with links to ISIS. His identity papers found inside the truck that mowed down innocent people at the Christmas market.

We're going to get to that manhunt in just a moment. But I want to begin with breaking news. This out of North Carolina, the state legislature during a special session failing tonight to repeal the controversial -- what's been called the bathroom bill.

CNN's Nick Valencia joins us now by phone with the very latest on that.

Hello to you, Nick. Fill us in on the details.

NICK VALENCIA, CNN NATIONAL CORRESPONDENT (via phone): Don, it was an exhausting day. After more than nine hours of caucuses and legislators going in and out of recess, no conclusion was reached on the House Bill 2, the so-called bathroom bill. Today was supposed to be the day that House Bill 2 was repealed. As a matter of fact, earlier this week both party leaderships brokered a deal.

Earlier this year this whole drama in the state started with ordinance, the Nondiscrimination Ordinance, in Charlotte that afforded rights to the LGBT community. That really angered and upset conservatives in the state. So as a result House Bill 2 was put forward, the so-called bathroom bill.

Earlier this week House Republicans and Senate Republicans asked Democrats to repeal and rescind that Charlotte ordinance and they would pave the way for House Bill 2 to be repealed. That did not happen today.

Senate Bill 4 was proposed by Republican leadership but it came with caveats. It was not a full repeal. It was not what state Democrats were expecting. Things did not go forward. State lawmakers are saying between $45,000 and $50,000 was wasted today on the special session with nothing achieved -- Don.

LEMON: Nick, what happens next?

VALENCIA: Well, it's going to be a huge economic blow to the state of North Carolina. An estimated $650 million has been taken away from the state. Entertainers like Bruce Springsteen has pulled out, the NCAA, NBA have pulled out their all-star games and championship games. It's been really detrimental to the state. We were told from sources in the state legislature that Republicans were desperate to get this bill repealed because of the economic impact. That was clearly not the case today.

Ultimately it came down to a core group of Republicans in the North Carolina legislature that were unwilling to waver their support for House Bill 2. As a matter of fact, this morning, Jeff Collins, one of the House Republican legislators, got up this morning and started the special session by saying that today's special session was unconstitutional. That it should be null and void because there is no extraordinary circumstance that should have brought these lawmakers to the state capitol today.

It was surprising to a lot of people. As I mentioned, by midday, we thought there would be a vote, at least that was the anticipation. The energy really changed in that legislature starting from optimism this morning with the Democrats, by mid afternoon, when that vote was expected, and we knew it wasn't going to happen, the energy became very clear to us that things weren't going to -- a deal was not going to be made.

At about 7:15 they called a recess only to announce at about 7:30 that the special session would adjourn without a resolution. We don't have a clear date yet, Don, on when or if they will host another special session. The legislature is expected to reconvene on January 11th, but there's a chance that House Bill 2 will not be on the agenda -- Don.

LEMON: Nick Valencia with the breaking news. We'll continue to follow. Thank you, Nick. I appreciate that.

I want to turn to the other bit of breaking news that we have. The latest on the search for the Berlin terror suspect. A man -- I want to bring in, I should say, CNN national security analyst Juliette Kayyem, the author of "Security Mom." Contributor Michael Weiss, the co-author of "ISIS: Inside the Army of Terror," and Mubin Shaikh, a former corrector extremist who's the author of "Undercover Jihadi."

It's good to have all of you on this evening. Thank you so much for coming on.

And law enforcement, Juliette, released the name and the photo of the suspect to the public. He's been all over the news media everywhere they can get the pictures out. They say he is armed and dangerous. What does that tell you? JULIETTE KAYYEM, CNN NATIONAL SECURITY ANALYST: Well, we're in a

better place than we were last night when you and I were talking. I mean, you have a name and a picture, that's a good place to start for law enforcement. Without either, they didn't know where to begin.

[23:05:01] So -- and remember, this is a European warrant, not just a German warrant. So this is going to cover the continent. So this means all law enforcement efforts will be focused on getting him.

This is the worst-case scenario for law enforcement, though, to have to go publicly with an armed and dangerous man and say, help us, because you just simply don't want to put the public at risk. So it says to me that they may have some leads about where he is, family, friends, others he may have interacted with. But they probably don't have a strong idea of where he is geographically at this stage.

LEMON: How likely do you think someone is helping him? Because CNN has learned that he does have ties to ISIS, Michael.

MICHAEL WEISS, CNN CONTRIBUTOR: Yes, I know it's very likely. He was part of a network that is considered to be the foremost network of ISIS in Germany. I mean, we call them pro-ISIS, but, look, the ringleader, Abu Walaa, who was arrested in early November, this was a guy who is proven to be sending people over to Syria and Iraq to join the terror organization. And we know that because one guy renounced ISIS and came back and identified Abu Walaa as, you know, the number- one ISIS recruiter in the entire country.

And we don't know the full extent of this network. I don't think the German security services know the full extent. They arrested five people in November including Abu Walaa. One of the five is a German Serbian who out of his apartment in North Rhine-Westphalia, the same area that this guy is said to have prepared to after committing this mass atrocity was running a kind of de facto Islamic center out of his apartment. Had a German girlfriend who disappeared for several weeks, came back wearing a veil, shocked the neighbors and was indoctrinating people in the tenets of Salafi jihadism and saying if you want to go over and join ISIS I can help you.

So this is similar to what we saw in the Paris and Brussels attacks. And that -- in those instances, there was a guy, his nickname was Papa Noel, or Father Christmas, and he was a longtime veteran jihadi ringleader and recruiter who was doing exactly the same thing. Radicalizing people from the continue, particularly from the Molenbeek region of Brussels where he lived, and sending them over to Syria. Giving them cash disbursements that why he was called Father Christmas because he was so generous with the money he was giving.

So this is a problem that Europe has been facing even going back before 9/11. It's a problem it's going to face well onto the next decade.

LEMON: Mubin, stand by because I've got -- I have another quick question for Juliette. Didn't you say last night you believe there's something heavy or a brick or something that he put on the accelerator? KAYYEM: So --

LEMON: Do you still believe that? And --

KAYYEM: Yes, I mean, I --

LEMON: But people could be helping him beyond that.

KAYYEM: Right.

LEMON: They didn't have to drive the truck.

KAYYEM: So there are a number of theories of the -- actually what happened in those moments. So from law enforcement people I have been talking to who study these cases, there's just two pieces of evidence that don't make sense to them. One, why did the truck stop? And the other is how can there not be a single person who seems to be able to identify someone getting out of the truck during this mayhem?

So one of the theories, and I'm saying there are multiple theories, because you don't want to close off any theories to this case, there are multiple theories, one is did he kill the driver, set the truck on its way, and then, of course, as we now know, he left behind either on accident or purposefully his identification papers.

LEMON: Mubin, let me ask you about that, leaving behind that -- that behind in the truck, do you think that it was planted or planned or that was an accident that he left it?

Well, I mean, again, all theories are possible. I mean, it could have fallen out in a struggle if a struggle ensued between the driver, you know, did he hijack the truck? In fact, if it was -- if it did fall out by accident, a crazy plot twist, you know, did he hijack the truck, leave the dead body, the Polish driver, so that you couldn't identify who it was and in effect becomes a false flag attack?

MUBIN SHAIKH, FORMER NATIONAL SECURITY OPERATIVE: So that -- but they were keen to take credit for it. I mean, what you're seeing now is we're all talking about, there have been so many different arrests. Networks being taken down. So we're looking at Anis Amri connected to Abu Walaa, that's Michael Weiss is referring to. Now remember there were also arrests of an individual linked to Abaaoud, Ridwan (INAUDIBLE), so what's happening somewhere is somebody's got on their work wall the networks that are identifying Paris, Brussels.

The Germans just arrested a Moroccan individual connected to the Abaaoud network. So we're actually starting to see those networks that we've been talking about for the past year saying that -- we're hearing them, you know, talking about bringing networks in, doing these attacks, now you're seeing the manifestations of those networks in place.

LEMON: Mubin, let's talk about this suspect, his father gave an interview to a Tunisian radio station, he says that his son left Tunisia seven years ago for Italy and apparently served a four-year jail sentence there for arson and robbery. He then came to Germany a little over a year ago. How or when do you think he was radicalized?

SHAIKH: Yes, you know, he's been using multiple identities. It's been hard to track him, I guess. I mean, he did do four years for a fire bomb attack I think at a school. You know, was he identified for any kind of rehabilitation? Probably not. Was any kind of rehabilitation in prison offered? Most definitely not.

[23:10:04] So he moves to another country, probably on false alias. So where did his radicalization happen? I mean, if he's growing up in Tunisia, he's going to be consuming the rhetoric that's coming out of there. The situation in Tunisia could very easily just make him an aggrieved person, just angry at the world. He's still very young. He's already engaging in violence, so his radicalization period I think becomes irrelevant because a lot of us are talking about well, why are they radicalizing?

Well, forget about that for a second. Look at how they're radicalizing and the networks that they're forming around that radicalization process. That's where you're going to start identifying these people in the network.

LEMON: Was this attack a byproduct of a generous refugee policy in Germany? And I just want to be clear that this man was Tunisian born, denied asylum by Germany. Has accepted hundreds or thousands of refugees from Syria and Iraq. Do you think that --

KAYYEM: I think there's --

LEMON: Because of it?

KAYYEM: I think there's reality and then I think there's politics. I think you and I can sit here and know that he had nothing to do with the refugee program that everyone is upset about. But do I know this is going to have political consequences for Merkel? Absolutely.

LEMON: Mubin, what were you going to say?

SHAIKH: Yes, well, it's the narrative, it's the narrative that's been weaponized by not just ISIS, but, in fact, right from Bashar al-Assad, you know, dispossessing all these people, pushing them into western Europe, western Europe is breaking itself apart because of far-right groups saying, look, the narrative and perception of Muslim invasion in white Christian lands is happening before your eyes.

So this plays on both sides. Remember, the refugees, a repudiation of Bashar al-Assad and ISIS. ISIS set up its little magical caliphate thinking everyone was going to subscribe to it but then everyone fled.

LEMON: Yes.

SHAIKH: Taking your kids on the perilous journey across a sea in rickety ships and rafts, I mean, you must be under -- you know, significant pressure to do that.

LEMON: Yes. SHAIKH: So the weaponization of the refugee narrative is what's

happening. And people are becoming increasingly polarized and forgetting the fact of why those people left in the first place.

LEMON: Michael, I have to go but I'll give you the last word quickly.

WEISS: Yes, I mean, Tunisia is not a big feeder of refugees into Europe. Why did this guy come to the Lampedusa, the Italian island, and you know, embark on a life of crime and then get arrested for four years. I think something was in him already before he decided to make this kind of emigration to the continent.

LEMON: Michael, Juliette, Mubin, thank you. I appreciate it.

Coming up the founding fathers weren't messing around when they wrote the Emoluments Clause into the Constitution. Could it be a problem for Donald Trump? We're going to talk about that next.

(COMMERCIAL BREAK)

[23:15:58] LEMON: Once again the mix of family and politics casting a shadow on the Trump transition after an invitation to a fundraising event appeared to offer face time with the president-elect and his son in exchange for a major donation.

I want to bring in now William Cohan, contributing editor to "Vanity Fair" and the author of forthcoming book, "Why Wall Street Matters," Emily Jane Fox, staff writer for "Vanity Fair," and Richard Painter, former chief White House ethics lawyer under George W. Bush.

"Vanity Fair" is very well represented here this evening.

(LAUGHTER)

LEMON: Good evening, everyone. Richard, I'm going to start with you. If Donald Trump doesn't separate himself from his businesses, he faces a big constitutional problem. It's called the Emoluments Clause, Article 1 Section 9. Here's what it says. "No person holding any office of profit or trust under them shall without the consent of the Congress accept any present emolument, office or title of any kind, whatever, from any king, prince or foreign state."

So what does this mean and how does it apply to Donald Trump?

RICHARD PAINTER, FORMER CHIEF WHITE HOUSE ETHICS LAWYER: Well, the bottom line is that the founders wanted there to be no foreign government payoff for anyone holding a position with the United States government. There had been plenty of that going on over in Europe where the French king would buy off members of the parliament in the United Kingdom. The king of England was at that, too, trying to buy off members of his own parliament. And they did not want any of that going on over here.

The four major world powers in Europe at the time, Russia, France, Austria, Hungary, and the United Kingdom were much wealthier than the United States and could easily dominate our government through payoffs and achieve what they could not through force of arms here in America. And so the founders understood this problem of foreign domination, American government, the American political system and it's something we fear this year in 2016 with foreign interference with our elections.

So this is a very important clause of the Constitution and Donald Trump needs to make sure that none of the businesses that he owns are receiving any money from foreign governments as of January 20th or he's going to be in violation of the Constitution. And I very much hope he takes those steps immediately to assure the American people because this is critical to our national security now just as important as it was at the time of the founding of our country.

LEMON: OK. Emily, I want to -- Newt Gingrich, you know, he's been advising Donald Trump, he's been talking about this conflict of interest problem and talked about it on NPR. Listen to this.

(BEGIN VIDEO CLIP)

NEWT GINGRICH, FORMER HOUSE SPEAKER: This is a country in which 75 percent of the people believe there's widespread corruption. We have got to go back to reestablishing a sense of trust. That has to be an assignment Trump takes personally and that has to be more than trust me. Trust me never works in the long run as a model. I mean, it's not possible.

(END VIDEO CLIP)

LEMON: It's interesting because he's making the argument that many people have made on this particular show and have been, you know, sort of castigated for saying or thinking that you were anti-Trump for saying just what's in the -- you know, in this Emoluments Clause.

Emily, you know, Trump supporters have been really loyal to Donald Trump right now. If he doesn't clear this up, could that change? Could support for him in the Oval Office change?

EMILY JANE FOX, STAFF WRITER, VANITY FAIR: I think it has to be something that's personal enough to many of the supporters. I think right now it's a little nebulous, these conflicts of interest, and they don't touch the majority of Americans. Sure, there's a portion of America who cares about the concept of conflict of interest but until it starts getting -- snowballing in such a way that every American understands why this is an issue, this is a really loyal following base that he has here and it's going to be really tricky for them to just suddenly see the light here.

LEMON: But isn't what's more important is, you know, as Richard said, for him to do it and also for us to educate the public about it? Because then if it happens, right, then they'll say, well what happened, we didn't know about this.

WILLIAM COHAN, CONTRIBUTING EDITOR, VANITY FAIR: I think Donald Trump and his family live in a bubble.

LEMON: But isn't it more important than whether his supporters are like, well, we don't care? You should care, this is what should happen.

[23:20:03] COHAN: Well, Don, there's a lot of things that the American people should care about and should have cared about --

(LAUGHTER)

LEMON: Or should be aware of.

COHAN: Or should be aware of or should be bothered by. But to Emily's point, I mean, I think this may be just a group of Americans that is willing to overlook a lot of what Trump does and doesn't seem bothered by it. They like this guy who is coming to Washington to, quote-unquote, change everything and will let him do whatever he wants until he is impeached, perhaps.

FOX: There could be a tipping point, right, there could be a moment in which a conflict gets so grave or it connects with the American people in such a way that they're willing to overlook this seemingly unique tie to a candidate. But --

COHAN: Look, you've already got, you know, whole delegates --

LEMON: You're choosing your words very carefully there, Emily. Go ahead.

COHAN: You've got whole delegations of representatives of foreign governments who were staying at the Four Seasons Hotel who switched from the Four Seasons Hotel to stay at the Trump Hotel in Washington thinking that that would get them better access. You have both of the -- Eric Trump and Donald Jr., you know, with their foundations.

LEMON: There's news about that. We're going to talk about that a little bit later. But I mean, I think you bring up a very interesting point because here's what you're talking about. Kuwait's embassy in Washington took some heat for moving a big party to Trump's new hotel. Now the ambassador is asking the State Department for clarity.

The question is, is it OK to book rooms, they say, at a Trump Hotel or is it not OK to do that? That's what they're wondering. And he says that diplomats are in unchartered territory here. Could there actually be a constitutional crisis over where a foreign embassy chooses to hold a holiday party?

Richard, I mean, could that be a constitutional crisis?

PAINTER: Well, it could be part of one. The issue is whether there are foreign government payments going into the Trump Organization. The world emolument comes from the Latin word for profits or benefit and so, yes, there's a benefit there when you have a whole delegation switched from the Four Seasons over to a Trump hotel in order to curry favor with the president. That's exactly the type of thing the founders envisioned as being a problem.

And, of course, there are much larger payments as well. There are large bank loans outstanding from the Bank of China which is controlled by the Chinese government and we have no idea what other payments are being made through foreign countries. We do not have the president-elect's tax returns. And the sources of income are not adequately disclosed in the financial disclosure form.

So this could be just the tip of the iceberg or we just don't know. But he does need to deal with it and he needs to assure the American people he's going to deal with it. He needs to be a president. A president is not an innkeeper, he's not a celebrity talk show host. He is a president and he has to take office in accordance with the Constitution. And that means no foreign government payments to any of these companies controlled by the president.

LEMON: More developing news. The children, I spoke about it earlier, involved in the business and also maybe involved in the administration. We'll discuss that when we come right back.

(COMMERCIAL BREAK)

[23:26:31] LEMON: We're back. Donald Trump takes office in 30 days and we still don't know what he's going to do with his family business. Back with me now, William Cohan, Emily Jane Fox, and Richard Painter.

This is the developing news I was talking about tonight. New tonight, Eric Trump tells "The New York Times" that he'll stop fundraising altogether for his charitable foundation which raises money for causes like fighting childhood cancer. He says the pay-to-play allegations are, this is a quote, "a quagmire, you do the right thing and it backfires."

Here's what he says. "It is unfortunate -- as unfortunate as it is," he says, "I understand the quagmire. You do a good thing that backfires."

What's your reaction, William?

COHAN: No good deed goes unpunished, Eric Trump? I mean, they should have known this months ago that they could not be using their foundations or, like with Ivanka, you know, setting up a coffee date and auctioning it off, even if it is for charity, because it does suggest getting access to the president of the United States by paying a certain amount of money. And that's just so obvious and not complicated.

Why, after the Ivanka incident, which they could have claimed that maybe they didn't know, then Eric and Don Jr. do it again with this Texas foundation? Makes absolutely no sense.

LEMON: Emily?

FOX: These are issues that are really clear-cut and very easy to see that there's a conflict of interest. And what makes me nervous is that they didn't even see these easy clear-cut things. What down the road that may be harder to judge are they not going to see and then it's just going to come up and the consequences are going to be much greater than a charitable donation and a charity coffee with Ivanka? LEMON: Isn't the obvious question is if you run for president of the

United States, the highest office in the land, it seems very simple to me that you should figure this out when you decide to run. And I sat here for 16, 18 months and covered Donald Trump and Hillary Clinton, and everybody else who was with them., that was a long time. I could have figured a whole lot of things out in that time. And I'm not running for president of the United States.

FOX: Well, certainly they had time to figure this out. Whether or not they thought they were going to be in this position, I think, is the greater question. I think that this came as a surprise to them that they won.

LEMON: Yes.

FOX: But the issue is that they still used the excuse, the children have used this excuse twice now in the last week that this is a new world for us. We're just adjusting. Well, you had a whole campaign to think about this and the president and the first family, every single day, they're presented with things that they've never seen before. For four years, for eight years in office, and they don't get the luxury of saying, well, this is a new world for me, some crazy crisis came across the desk of the president, and the president doesn't have the luxury saying, like, I need more time to think about this.

LEMON: Yes. Isn't she right, Richard? It's a whole new world for every president almost every single day with, as she said, the things that came across your desk and the issues that you have to deal with.

PAINTER: Well, yes, and this business of using public office to raise money for charities, we went through this with the Clintons. There was an enormous amount of criticism of the Clinton Foundation by Donald Trump himself. So I'm very surprised to see the Trump family get into some of the same morass.

Now on the other hand, I have to say that the politicians have been raising money for years, and using the president of the United States. It's just for political fundraisers. And you pay a certain amount o f money, you get your picture with the president, or private meeting, and so forth.

LEMON: You think about the Lincoln bedroom, remember that?

PAINTER: Yes. Yes. The American people are just disgusted with this. It's been going on under Democrats and Republicans for years. But most all of it has been campaign finance. And it doesn't help expanded into the charitable arena.

[23:30:04] What they should be doing is shutting down pay-for-play in both campaign finance and in charitable fundraising. That is not the role of government. And the American people are sick and tired of it.

Donald Trump, one of the reasons he won the Republican primaries he convinced voters that he was independent of the whole political fundraising machine because he had his own money. And to see the Trump families getting involved in fundraising and so forth, it just means we're going back to square one or worse. And what they need to be doing is getting the money out of politics. Period. That's what the American people expect.

LEMON: He ran on draining the swamp. And I just want to say this because, you know, even Newt Gingrich has come out and said, again, that he's going to change this whole draining the swamp line, he may not use it anymore because he needs to sound more presidential or more sophisticated in his languaging.

Donald Trump added another billionaire to his team today, Carl Icahn, America's 50th richest man according to "Forbes." He's going to advise the president-elect on regulatory issues. Democrats are calling this a corrupt arrangement. It puts Icahn in a position to profit off regulatory changes overseas. Do you agree with that?

COHAN: This, Don, really is bothersome. This is really a troubled situation because Carl Icahn is not going to go into the government, he's not going to have to divest himself of his holdings, he's not going to have to do what the other Cabinet officers are going to have to do. He's going to be able to say outside the government, directly benefit from the regulations that he's going to repeal, or change, whatever. He's going to have inside information and he's going to be able to trade on that without anybody saying anything.

He's in a position to change the rules of the game and benefit extremely without having to divest himself of anything. This is the worst kind of situation that Donald Trump is creating.

LEMON: Richard, I have to run but I imagine you want to comment on this?

PAINTER: Well, I agree. I think Carl Icahn is a well known corporate rater. And people question his business ethics for many years and I don't see how he is getting involved in picking the next chairman of the Securities Exchange Commission. I've done a lot of work in corporate finance and bank regulation for years and to see Carl Icahn being put in charge of this, that looks like the fox in charge of the chicken coop. That's not a good idea. And having him not subject to any of the conflict of interest rules and being outside the government, that's even worse. And I would not be doing that.

LEMON: All right. Thank you, everyone. I appreciate it.

Coming up, Bill O'Reilly's statements about the electoral college and white privilege shocking even some of his toughest critics.

(COMMERCIAL BREAK)

[23:36:16] LEMON: FOX News' Bill O'Reilly no stranger to controversy, of course, and his theory on the electoral college has outraged many people. Let's discuss now with Republican commentator Joseph Borelli, a New York City councilman, CNN political commentators Kayleigh McEnany and Bakari Sellers, and Angela Rye, former executive director of the Congressional Black Caucus. Good evening to all of you. Bakari, you first. So Bill O'Reilly

launched quite a firestorm. Let's listen to him describe what he says is the hidden reason behind calls to abolish the electoral college.

(BEGIN VIDEO CLIP)

BILL O'REILLY, FOX NEWS ANCHOR: The left sees white privilege in America as an oppressive force that must be done away with. Therefore, white working class voters must be marginalized and what better way to do that than center the voting power in the cities? Very few commentators will tell you that the heart of liberalism in America today is based on race. It permeates almost every issue. That white men have set up a system of oppression. That system must be destroyed.

Bernie Sanders peddled that. Some extent, Hillary Clinton did. And the liberal media tries to sell that all day long. Left wants power taken away from the white establishment, they want a profound change in the way America is run. Taking voting power away from the white precincts is the quickest way to do that.

(END VIDEO CLIP)

LEMON: So he mentions the liberal media, he's not talking about CNN. So what do you think, Bakari?

BAKARI SELLERS, CNN POLITICAL COMMENTATOR: I mean, if you close your eyes, you believe that you're listening to a clip from 1968 or Apartheid South Africa. I mean, one, this is one of the few quotes when I actually saw it yesterday, when you actually listen to it in context, context is actually worse when you get the full context of his actual quote. That's first. And second, it's ahistorical, and it's just, you know, this whole concept of white supremacy, this whole concept of this white nationalist rhetoric, I'm astounded to actually hear it out of Bill O'Reilly's mouth, a very highly rated late-night TV show. And this is just not the conversation we need to be having.

LEMON: Angela?

ANGELA RYE, CNN POLITICAL COMMENTATOR: So I think that we have to have this conversation in the context of history. It's important because we continue to ignore the fact that the electoral college itself was founded upon this same white supremacy that Bakari just referenced. James Madison who was known as the father of the Constitution, himself a slave owner, himself pushing the idea of three-fifths of a person being a slave counted so that the master class could have authority and have a voting power that was as strong as the north. That is what this is about. That is why people are frustrated. People are just now really learning about this and understanding that, hey, this electoral college system doesn't really represent us.

So, yes, Bill O'Reilly, you're right. White establishment to me means white supremacy. To me it means racism. To me it means the foundation of this country that we have to begin to understand is built upon systemic oppression. And until we're willing to address those issues, we're going to continue to have this same issues and perpetuate the same thoughts.

LEMON: Kayleigh, you're shaking your head no.

KAYLEIGH MCENANY, CNN POLITICAL COMMENTATOR: Well, look, I don't agree with couching the electoral college in race either coming from Bill O'Reilly or coming from Angela Rye. I think the electoral college is entirely separate from that, it elevates states that otherwise might not have a voice. In this case it was working class voters out in Michigan, out in Wisconsin. But in another day and another place, we could imagine the electoral college empowering black voters in southern communities who have their voice heard --

RYE: Can you?

MCENANY: Because of the electoral college, they have representation because otherwise states that have fewer -- you know, lesser populations like Mississippi, for instance, wouldn't be represented. We have a state of -- we have a country based on 50 republics. We don't have a direct democracy.

[23:40:04] If you have a problem with that, change it, but don't change it after an election just because you're being a sore loser and you're upset your person didn't win.

(CROSSTALK)

RYE: Kayleigh --

SELLERS: If I may -- if I may --

MCENANY: Because I didn't hear any of these arguments a week ago --

RYE: Kayleigh.

MCENANY: Six weeks ago, rather.

SELLERS: But if I may, Don, just quickly. If I may. One of the things that Kayleigh just did was ignore all the historical context that Angela put forth.

RYE: Every single bit.

JOSEPH BORELLI: The fact is because they're wrong. It's because they're wrong.

SELLERS: It's not wrong.

RYE: No, no, it's not wrong.

BORELLI: I think Angela is wrong --

(CROSSTALK)

LEMON: Let him explain and I'll let you -- go ahead, Joe.

BORELLI: I think Angela is wrong for the same reason that I think Bill O'Reilly is wrong for conflating the electoral college with the three-fifth compromise. If you look at Article 2, Section 1, that's not where the three-fifth compromise is.

And if you look at Federalist Paper number 68 which Alexander Hamilton, not Madison, wrote to articulate the reasons on why we have an electoral college, there are actually a lot of the same reasons the Democratic Party used to justify its support for faithless electors including, I'm assuming maybe you guys did a couple of weeks ago when you were pushing for sort of the electors to switch their votes.

So you can't conflate two things. Are there racist institutions in our country? Is the three-fifth compromise something that should be discussed in racial terms? Yes. But I don't think it's fair to just conflate the two.

LEMON: Do you understand -- before you respond, do you understand that part of the impetus with the electoral college was that so people who were slave owners could count those slaves as populations so that people in the north and more populous places would not have more votes than the people in the south?

RYE: Three-fifths.

BORELLI: The three-fifths compromise is not the same as the electoral college.

(CROSSTALK)

RYE: I don't understand why you can't get this.

BORELLI: I don't understand why you don't get it, Angela.

RYE: Because you're wrong. Like, I don't know what --

SELLERS: Yes, you are wrong -- you are wrong.

RYE: Go ahead, Bakari.

SELLERS: The reason that you're wrong, the reason that you're wrong is because in 1787, Wilson and Madison had this conversation. But the reason that I had a problem with Bill O'Reilly couching this conversation of white supremacy and somehow African-Americans and Latinos and people of color and gay Americans and everyone who was a minority in this country attempting to somehow take away some power from the white man in this battle over the electoral college is because it shouldn't be couched as something this small.

This is a larger conversation that we have to have. It's not just a conversation about the electoral college. You know, Donald Trump is the president of the United States. The electoral college was based on our founders' racist ideology at that time that bred this. That's fine. But we're here now and we do need to talk about how we're going to disband some of these remnants of white supremacy that still exist.

MCENANY: But, Bakari, six weeks ago --

SELLERS: I think that is the larger conversation that have to have.

MCENANY: Six weeks ago no one was making this argument. I've never heard this.

RYE: That's not true.

MCENANY: And now all of a sudden, because Hillary Clinton lost --

SELLERS: But that's not true --

MCENANY: And because the electoral college put Donald Trump there, now all of a sudden we've got to get rid of it.

(CROSSTALK)

SELLERS: But that's my entire point.

BORELLI: Look, Bakari, that's 1968.

SELLERS: That's my entire point.

LEMON: Hold on, Joseph. Go ahead, Bakari, and I'll --

SELLERS: That's my entire point, Kayleigh. I do not want to reduce this conversation to one about the electoral college. I think this is a larger conversation that has to be had. What he said yesterday, or whenever Bill O'Reilly said it, it was so flawed. We can talk about how it was ahistorical as Angela so eloquently pointed out. But we also have to talk about the simple fact that African-Americans, we don't want anything from white people.

It's not as if we want to take something from white nationalists or take something from white supremacists. We only want --

LEMON: Or the white working class?

SELLERS: Or the white working class. We're not trying to take anything.

RYE: Or white anybody.

SELLERS: White anybody. All we really want are the things that are our inalienable rights. We don't want you to give us anything. Just basic human dignity and equity is all we're asking.

LEMON: Go ahead, Joseph.

RYE: And let --

BORELLI: Well, Bakari mentioned 1968, and in that year, both the Democrats and Republicans saw an advantage in advocating for the electoral college to be removed. And since that time both parties have -- you know, when it was convenient to them, advocated for the electoral college to be removed.

I think Bill O'Reilly's mistake, and you're correct in this, was to make this a racial argument. There are valid arguments and there's a valid conversation to be had on whether the electoral college should exist as it does under the 12th Amendment or should be changed. And I think O'Reilly to just sort of insert this as a racial argument is where his mistake really was made.

RYE: But that's not his mistake at all. The mistake is for us to continue to act like this is not a country that was built on the oppression of black and brown and Native American people. We cannot continue to look past that. I have always talked about the troubles of the electoral college.

Kayleigh, I know that we were just meeting each other this year and becoming friendly this year. But that is also arrant. You're wrong. I don't care what the Democratic Party has done or what the Republican Party has done, we have to address fact that systemic oppression and racism is real in this country. Bill O'Reilly had it right, there is -- I almost said white. He had it that way, too. But there is a problem with the white establishment. That white establishment is called white supremacy. That white supremacy is called racism. That racism is called systemic oppression and it is time for us to call it what it is.

MCENANY: And no one -- no one is --

RYE: That is rooted -- the electoral college is rooted in that system and we cannot separate three-fifths humans, the fact that my ancestors were counted as three-fifths as a part of that electoral college structure. We just can't do it.

MCENANY: Angela, no one is condoning white supremacy.

[23:45:01] That's a horrific ideology. There's no place for it in this country.

RYE: Except for Bill O'Reilly.

MCENANY: It's a very -- it's a very small portion of society that sadly exists that it's there. It is being given a megaphone because people on the left are trying to --

RYE: Oh, no.

MCENANY: -- tie the Trump administration in every way, shape and form to something that doesn't exist. And these white supremacists are being given a megaphone not by Donald Trump but by the left who completely elevates them to be something more significant than they are.

RYE: No, Kayleigh. Kayleigh, you can't put that at the feet of Democrats. You have to put that at the feet of your candidate. There are people who are getting booed off airplanes, flicked off --

(CROSSTALK)

BORELLI: Which was a hoax, we found out.

RYE: I don't --

BORELLI: That was a YouTube star --

RYE: That's false. That's false.

BORELLI: Who makes films about being offensive on planes.

RYE: So you can make that allegation about him if you want to, but here's the fact of the matter. There was a white man on a Delta flight who acted an absolute ass and did something very similar. You have kids chanting build that wall. You have a rise in hate incidents --

(CROSSTALK)

MCENANY: Happens on both sides.

RYE: You have a rise in hate incidents since your candidate was elected. You cannot put that at the feet of the left. I would also implore you all to understand that racism is a bipartisan and nonpartisan problem. I've said that 100 times and I mean it.

LEMON: OK. Stand by. We'll be right back. We'll be right back.

BORELLI: OK.

(COMMERCIAL BREAK)

[23:50:05] LEMON: All right. So back now with my panel and I want to bring -- Bakari, I think you wanted to say something but, you know, I'm discussing this here with Joseph Borelli. He's saying that it's a mathematical problem, not a racial problem when it comes to the electoral college and who gets counted and, you know, as citizens and who gets to be president.

SELLERS: Well, I mean, I appreciate having the historical conversation with my friend Joe but I think that -- and one of the things I wanted to look at, when Bill O'Reilly said it, is I don't want to look at this in the context of just the electoral college. It has to be looked at in a larger system and the larger society we live in. And Kayleigh was talking about the very small remnants that we have of white supremacy or nationalism or racism in this country and I think the problem that we're having is we're talking past each other.

Because many people look for signs that may say like coloreds only or segregated water fountains or segregated schools just to think that racism -- that was the only time that racism exists when that's not the case. I mean, you can look at the corner of Chaman in South Carolina, or schools where African-American kids go to school where their heating and air don't work and the infrastructure is falling apart. Or you can look at Flint, Michigan, for example.

Flint doesn't happen in Orange County. I mean, you can look at these systems of oppression we have in this country. And although it may not say whites only, that is still the remnant of what this country has to grapple with, which is that element of racism, which is that element of supremacy. And that's what I think I'm trying to get Kayleigh and Joe to understand.

MCENANY: But I understand, Bakari, and I think you're totally right. Look, I mean, I've heard stories from my criminal law professor, for instance, saying that he stood on the side of the road, an African- American male trying to get a cab and he watched cab after cab go to the white person standing in front of them and no one would stop for it. It's a micro aggression, if you will, is what, you know, some people like to call it.

SELLERS: Well, that's also --

MCENANY: That exists.

SELLERS: That's not a system, that's an implicit bias. That's not a system, that's an implicit bias. So those are different.

MCENANY: Racism exists. No one is denying that. And it's horrific and we should dispel of that myth but likewise we shouldn't haphazardly call people racists. Everyone affiliated with Donald Trump in some way, shape or form has been labeled a racist, including myself.

RYE: That's not true.

MCENANY: Including Joe, and it's unfair. And we should stand together and try to talk to each other and stop talking past each other.

RYE: Kayleigh --

MCENANY: And means resisting labels.

RYE: Kayleigh, let me ask you something. Have I ever called you a racist?

MCENANY: You haven't, but many other people have, and -- everybody who has any sort of affiliation with Donald Trump --

BORELLI: Go look at Twitter right now.

MCENANY: Go look at Twitter. Yes.

RYE: Look at my Twitter, too.

BORELLI: I know. I know. Yes.

(CROSSTALK)

RYE: But my point is this. If we could stay within the confines of this conversation, I think that's very important because we have the opportunity to have at least a civil discourse on this when there are a lot of other folks who haven't gotten to that point. And I'm just asking for a simple acknowledgment that there are systems in this country that are in place and they have where racist roots and if you have a bad foundation, Kayleigh, like, let's go to church on this. If you have a bad foundation, the fruits of that thing are bad.

They're negative. So that means we have to question the system and figure out how to either remedy the system, amend the system or get rid of that in this discussion.

SELLERS: Or tear it down.

MCENANY: Here's a flaw in your argument, by logic of your argument, we should destroy the Constitution, get rid of democracy as we have it and rebuild from the ground up because it's not rooted in fact.

RYE: Do you think that's the way I see it?

SELLERS: No one is saying that.

(CROSSTALK)

MCENANY: You're failing to recognize the real reason we have the electoral college so that states like California and New York don't decide our president at the expense of states like Iowa --

SELLERS: California was not around when we invented the electoral college.

RYE: Time out.

MCENANY: No, my point --

SELLERS: California was not around when we invented those electoral college.

MCENANY: You're missing my point, Bakari. Let me be very clear. My point is this. New York and California are the reason that Hillary Clinton won the popular vote. Without them, Donald Trump won by three million votes. The reason we have the electoral college is that states like Iowa and states like Michigan are represented.

LEMON: OK. So hold on. Hold on. Hold on.

MCENANY: And not just --

LEMON: Hold on. What's wrong with New York and California?

MCENANY: There's nothing wrong with that. But my point is, you're missing point. Nothing to do with whether California existed or not. That proves you're not listening to my point. My point is, if we didn't have --

LEMON: OK. Hold on. Hold on. Hold on. Let her talk.

MCENANY: If we did not have the electoral college, states like New York and California would choose our president. So states like Iowa and --

LEMON: What's wrong with population -- I'm just posing the question.

MCENANY: And I'm giving you the answer.

LEMON: What's wrong with the population deciding that?

MCENANY: The farming -- states like the farming states like Iowa, like the rust belt states would be ignored. Their interests would be ignored and the interests of only those in urban areas like New York, like California would be represented. And we would have a whole slew of people, a whole slew of industries who wouldn't be represented by the president of the United States.

LEMON: You think that would be the only people who would be represented?

BORELLI: There's nothing wrong with that. And that's why I think Bill O'Reilly's point is wrong because he brought unnecessarily this racial component to it. I don't think there's anything wrong with saying the Democratic Party feels that they would have more power if the electoral college was abandoned and they could rely on the principal urban areas of our country.

I think O'Reilly's premise is even wrong because if you look at the major cities, he referenced New York in his little rant. But if you look at New York, Chicago and L.A., white males are still the most largely populated ethnic and gender group in those cities. So I don't think it's -- in his mind it's an automatic, you know, usurpation of white people's votes. I think that's where he went wrong.

RYE: Here's the challenge.

SELLERS: But the problem --

RYE: Right, Bakari, hold on one second. Here's the challenge. You all also are assuming that the entire state of California and the entire state of New York are urban areas. That is factually inaccurate.

[23:55:07] LEMON: I think he just said that. He just said that.

RYE: I didn't hear you say that.

(CROSSTALK)

BORELLI: No, no. I said that they would focus on urban areas and metropolitan areas because that's what Bill O'Reilly actually -- that's what he referenced.

RYE: So then we didn't say the same thing. Yes.

SELLERS: But we're missing -- but we're missing Bill O'Reilly's ignorance. We're missing Bill O'Reilly's ignorance. When you just --

RYE: I haven't missed it.

SELLERS: But that's my point. I mean, and to Kayleigh's argument, I mean, you could take away Texas and then a whole another argument. But that's not -- that's neither here nor there. What Bill O'Reilly is talking about was somehow that the Democratic Party, the liberals, the voters of color, the people of color somehow want to take things away from the white establishment. Listen to how that sounds. I mean, if you go back and you listen to some of the tapes in South Africa and you listen to the Apartheid-type language that was used then, I mean, when you have this gas-lighting that Bill O'Reilly was doing, I mean, we talked about how it's ahistorical but we need to refocus on how dangerous his rhetoric was.

RYE: It sounds like make America great again. It sounds like take our country back.

SELLERS: But you know what -- but you know what it talks about, though, to be completely honest. It talks about a group of people in this country who fear that they're losing some power or something.

RYE: Absolutely.

LEMON: More to discuss. And I'm sure Bill O'Reilly like this. Merry Christmas, everyone.

(LAUGHTER)

(CROSSTALK)

LEMON: And good night to California, and New York, and Iowa, and all those places in between. Thank you. Appreciate it. That's it for us tonight. Thanks for watching. I'll see you right back here tomorrow.

(COMMERCIAL BREAK)