Return to Transcripts main page

The Lead with Jake Tapper

Special Counsel Report: Biden Willfully Retained Classified Information But Will Not Face Charges; Biden Reacts To Special Counsel's Scathing Classified Docs Report; Special Counsel Report: Biden Willfully Retained Classified Information But Will Not Face Charges; Supreme Court's Questions Suggest Support For Trump In Ballot Dispute. Aired 4-5p ET

Aired February 08, 2024 - 16:00   ET

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

[16:00:01]

PAUL BEGALA, CNN POLITICAL COMMENTATOR: Trump has a long list of really frightening mental gaffes of his own.

BRIANNA KEILAR, CNN HOST: Paul, we thank you so much for joining us for this breaking news.

Special counsel Robert Hur not going -- not recommending obviously that there would be a charge of handling of classified documents here, Boris, but obviously raising a lot of questions.

BORIS SANCHEZ, CNN HOST: Yeah, and we are also getting a statement, just moments ago from former President Donald Trump describing this as a double standard. Of course, CNN will keep you posted with the very latest.

We'll send it over to Jake Tapper with THE LEAD.

(MUSIC)

JAKE TAPPER, CNN HOST: The breaking news, the special counsel with harsh words, but no criminal charges for President Biden.

THE LEAD starts right now.

A rather scathing report now out from special counsel Robert Hur noting that President Biden also held on to classified documents, but unlike in Donald Trump's case, Biden will not face any charges, as special counsel cites in part Biden's age and faulty memory, making him sympathetic and difficult to prosecute it. We're going to dive into this breaking news report.

Plus, Donald Trump's rather good day at the U.S. Supreme Court. His legal team arguing why the former president should be kept on the ballot in Colorado and beyond. A plaintiff and an attorney who brought on this case will join us live.

And a jarring ruling for a former Trump adviser, Peter Navarro, order to report to prison.

(MUSIC)

TAPPER: Welcome to THE LEAD. I'm Jake Tapper.

Off the bat today, two big stories in our law and justice lead. We'll get to the U.S. Supreme Court in that major case involving Donald Trump, which could impact his eligibility in the 2024 presidential race.

But first, we need to get to the breaking news. A report just released from special counsel, Robert Hur, into President Biden's handling of classified documents from when he was vice president, documents that were far from securely stored at his home. The report includes photos like this one showing where this classified material was kept, under his TV in his Delaware home, in numerous unlocked, unauthorized locations.

Classified documents about Afghanistan in his garage, in an old box surrounded by household detritus. In Mr. Biden's main floor office and basement den, page one of the reports executive summary reads, quote, our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen. But, the next paragraph goes on to say, quote, we conclude that the evidence does not establish Mr. Biden's guilt beyond a reasonable doubt. Therefore, prosecution of Mr. Biden is also unwarranted.

And one big reason for that, according to the special counsel, is on page 219, quote, we have also considered that at trial, Mr. Biden would likely present himself to a jury as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory. The report notes that President Biden's memory issues are significant, stating, quote, he did not remember even within several years when his son, Beau, died.

Evan Perez is combing through the report and, Evan, for a report that concluded that they're not going to bring criminal charges, it's pretty scathing.

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Right, Jake.

Now, this report spares very, very little here for the president of the United States and his legal team, of course, is very, very angry because of that. Ill read you just a part of this of this report which goes over -- again, they talk about how they've interviewed 147 witnesses, 7 million documents that they reviewed during the course of this 15-month investigation.

I'll read you just a part of what they say. They say that: our investigation uncovered evidence that the president -- President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen. These materials included marked classified documents about military and foreign policy in Afghanistan, notebooks containing Mr. Biden's handwritten entries about issues of national security and foreign policy, implicating sensitive intelligence sources and methods. They go on to point out, Jake, that FBI agents recovered from unlocked drawers in the offices and basements of Mr. Biden's Delaware home, a set of six -- set of six of notebooks that he used as vice president. Evidence shows that he knew that the notebooks contained classified information.

Now, as you pointed out, Jake, the bottom line here is that we have a conclusion of an investigation with no charges against the president of the United States.

[16:05:02]

And what Robert Hur and his investigators say is that it's not just because DOJ, the Justice Department has rules against indicting a sitting president. They point out that for a number of reasons, there are a number of mitigating factors here, including they believe that Joe Biden would be able to present a credible defense that, you know, essentially, what he did retain, he forgot about. And one of the things they say is that he would be able to present himself as a sympathetic, well-meaning and elderly man with a poor memory.

Now, look, the report goes on, Jake, to point out a lot of problems with the way classified documents are handled. They point out that going back to President Reagan, who left office with number of notebooks that that he kept notes from, which included classified doc -- classified information over his eight years that he served as president. He kept those documents and there is no indication that the Justice Department ever investigated that.

Of course, one of the important things that will happen as a result of this 345-page report, Jake, is the inevitable comparison with Donald Trump. You read just -- just a little while ago, Donald Trump reacting to this report and Robert Hur goes on to point out that there are important differences between the Trump investigation and this one, including the fact that Donald Trump refused to turn over the classified documents when he received a subpoena from the court, demanding that he returned the documents, that he also engaged in obstruction, instructing witnesses to lie and attempted to hide documents when the FBI came to Mar-a-Lago to try to retrieve them. So important context, important differences between the Trump investigation and this one.

One other thing of note, Jake, that I think we should point out, the fact is that this is a report that again goes into scathing detail of the various ways that Joe Biden mishandled classified documents. He shared -- he shared classified information with a ghost writer that he was working on, a memoir in -- after his vice presidency in 2017, and that ghost writer provided important recordings of his conversations which show that Joe Biden at least knew that he had classified documents.

I'll read you just a part of what it says here. It says there is a part of the recording where he says, just found all of the classified stuff downstairs. Again, that's the most damning piece of evidence there that indicates Joe Biden knew he was taking home classified information and had kept it when he was not supposed to, Jake. TAPPER: All right. Evan Perez, thanks so much.

Let's go to CNN's MJ Lee at the White House for us now.

MJ, how has President Biden or his attorneys responded to this report?

MJ LEE, CNN SENIOR WHITE HOUSE CORRESPONDENT: Well, the White House is, Jake, certainly leaning into the special counsel's decision to not bring charges, basically saying that this is what they had expected all along.

They're also really making a point of highlighting the full cooperation they say President Biden and his team gave to the special counsel's office, sitting down for a five-hour interview. That's according to the president who put out a statement himself. The weekend that the war in Israel broke out, a turning over documents as soon as they were discovered, all of this they say shows what they have said all along that the president does take matters classified documents very, very seriously.

But it is very clear, Jake, that the White House is raising some very serious issues that they see with the special counsel's investigation. There are, as you were talking about with Evan, many references in that report about memory and recall problems that they say the president and clearly has, including when he was being interviewed with the special counsel's office, including this reference to a jury potentially finding him to be a sympathetic, well-meaning, elderly man with a poor memory.

Now, if you look at the statement from the White House special counsel, it says, we disagree with a number of inaccurate and inappropriate comments in the special counsel's report. Nonetheless, the most important decision the special counsel made that no charges are warranted is firmly based on the facts and evidence.

Now, if you look at the report, you know, actually exactly what it is they find inappropriate about the investigation because it says in the report that they do not believe that the reports treatment of the president's memory is accurate or appropriate. The report uses highly prejudicial language to describe a common occurrence among witnesses, and that is not being able to recall events that took place many years ago. It goes on to say that those comments have no place in a Department of Justice reports. So that is a serious issue that they are taking.

[16:10:02]

The other issue that we are seeing the White House take with this report is really the length and the scope of the report itself, that it was unnecessarily long and detailed. Take a look at this statement from the president's personal attorney, Bob Bauer. He says the special counsel could not refrain from investigative excess, perhaps unsurprising, given the intense pressures of the current political environment, whatever the impact of those pressures on the final report, it flouts department regulations and norms. So, basically, they're saying a 15-month investigation, 173

interviews, 147 witnesses, all of that to ultimately not bring any charges against the president. Again, as the White House says -- said all along, they believed would be the conclusion.

But, Jake, I can guarantee you. It doesn't matter to Republicans, the former President Donald Trump, critics of the president, who are going to seize on this, whether or not charges were brought. They are going to be seizing on all of the detailed mentioned of the memory issues at the special counsel's report alleges the president has to make the point that this is somebody who is too old to be president and has mental cognitive issues. That is something that the White House is going to be pretty furious about, Jake.

TAPPER: MJ Lee at the White House, thank you so much.

This is a damning report for the president, even if it is not criminal. Donald Trump has just reacted to it. We have a lot to discuss. We're going to be right back.

Stay with us.

(COMMERCIAL BREAK)

[16:15:22]

TAPPER: And we're back with the breaking news. Special counsel Robert Hur releasing report this afternoon saying the president, Joe Biden, willfully retained and disclosed classified military and national security information while he was a private citizen, but the president will not face charges after this year-long investigation. The report concluded the prosecutors would not be able to prove that President Biden intended to break the law.

President Biden is talking about this right now. Let's listen in.

JOE BIDEN, PRESIDENT OF THE UNITED STATES: That there are no charges should be brought in this case.

(APPLAUSE)

As many of you know, this was an exhaustive investigation, going back literally more than 40 years, 40 years when I became a United States senator, I was a kid. I was a kid, 29 years old.

Special counsel acknowledged I cooperated completely. I did not throw up any roadblocks. I sought no delays. In fact, I was so determined to get a special counsel what they needed, I went for the five-hour in- person interview over the two days of October the 9th -- 8th, and 9th, last year, even though Israel just been attacked by Hamas on the 7th.

I was in the middle of handling an international crisis, but I was especially pleased to see the special counsel made clear the stark differences between this case and Donald Trump.

As the special counsel wrote and I quote, several material distinctions between Mr. Trump's case and Mr. Biden's are clear by this Republican counsel, most notably after giving multiple chances, this is a continuation of the quote, he returned classified documents and avoided to avoid -- and avoided prosecution.

Mr. Trump allegedly did the opposite. This is to continue the quote. According to the indictment, he is not only refused to return documents for many months, he also obstructed justice by enlisting others to destroy evidence and then lie about it.

In contrast, Mr. Biden turning classified documents to the National Archives, the Department of Justice, consented to a search of multiple locations, including his homes, and sat for a voluntary interview, and in other ways cooperated with the investigation.

That's the distinction, among others.

(APPLAUSE)

The bottom line is the special counsel in my case decided against moving forward any charges. This matter is now closed.

(APPLAUSE)

I'll continue to do what I've always done. Stay focused on my job, like you do of -- my job of being president. That means going to work with all of you every single day. I can. Thank you for being great partners.

Just this week, House Democrats showed how united you are. You defeated Mayorkas' impeachment resolution. You --

(APPLAUSE)

I no doubt (INAUDIBLE) get out of his hospital bed and come in to vote. No, I'm not joking. I talked to him a little bit -- not -- after, not before.

(LAUGHTER)

You defeated the Israeli -- the Israeli only supplemental. They weren't easy votes for you, but all of you came through in a big way.

All this just shows that when we're united, we can beat --

TAPPER: All right. President Biden talking about things other than the special counsel report, so let's break away and go in, check in with MJ Lee, who covers Biden for us at the White House.

And, MJ, the president there taking what is positive news for him in this report? No criminal charges. And special counsel Hur might have been critical of Biden, but he did point out some important distinctions between the Biden case and the Trump case that are not flattering to Mr. Trump. President Biden seizing on those, and declaring victory in a sense.

LEE: Yeah, we just got a pretty clear distillation of how we expect President Biden and other White House officials to talk about this report going forward, basically saying no charges were brought at the end of this investigation. President Biden and his team fully cooperated with the special counsel's office and we heard him say here, this case is now closed. In other words, he would like to move on.

And he said that he was pleased, in particular with the contrast that Robert Hur drew between his team and his handling of the classified documents investigation, and Donald Trump and all of the allegations surrounding his handling of classified documents, in contrast.

And the reality is that they can now go forward and move -- and use Robert Hur's own words when they are drawing that contrast, which they actually have been doing for some time. The fact that they turned in these classified documents right away to the National Archives is something that they've talked about. The fact that they consented to the search of multiple locations, that he sat for a voluntary interview. He did that the weekend that the Israel war broke out.

So this is the contrast that they are going to continue making. But of course, as we were talking up -- talking about before, doesn't take away the political ammunition that, that this gives the president's critics and Republicans, including the former president -- Jake.

TAPPER: All right, MJ Lee.

Let's talk about that now with CNN's Kristen Holmes, who covers President Trump, former President Trump in West Palm Beach, Florida, for us.

And, Kristen, Donald Trump has been given a gift of sorts in this special counsel report, the special counsel specifically noting President Biden's, quote, diminished faculties and faulty memory, unquote, and giving specific instances that are -- that are cringey to use a word. And yet my guess is that Donald Trump, instead of seizing upon that, will complain about a two-tiered standard of justice and how unfair it is that President Biden is not being indicted. Am I right?

KRISTEN HOLMES, CNN NATIONAL CORRESPONDENT: And you guessed right, you guessed right.

TAPPER: OK, yeah.

HOLMES: That is, you get -- you win the prize.

TAPPER: Yes.

HOLMES: I do want to say something before I read the statement because I think it's really important and that is that most of his supporters, not all of his supporters, as well as people who are considering supporting him, will believe the statement that I am about to read.

Now, there are accuracies in it. I'm not going to read the whole thing. We'll go through some of those inaccuracies, but as you said, Jake, this was a political gift of sorts to Donald Trump, inability for him to blur these two cases together, to be able to say it's a two-tiered justice system, and all of that conversation around Biden's mental faculties, that is something that his team is already seizing on, on social media and they're going to continue pushing out.

So here's what he sent out. It says: This has now been proven to be a two-tiered justice system. And uncover unconstitutional selective persecution. Excuse me, prosecution. The Biden documents case is 100 times different. It is 100 times different. This is more severe than mine. He says I did nothing wrong and I cooperated far more. What Biden did is outrageously criminal and it continues there.

Again, as we know and as we've said over and over again, these two cases are very, very different and particularly when it comes to obstruction. We do know that Biden was the much more cooperative and willing to turn over those documents than Donald Trump. And in fact, there had to be a subpoena to get those documents from Donald Trump, plus, there have been reports of witness tampering that the special counsel is looking into, to try and protect those documents and keep them with Donald Trump.

Now, again, though, I cannot stress enough how politically this is going to play out, because it is something that has really going to be amplified by Trump and his team. They are going to blur the lines of these two cases to say that he should have also been charged. They are harnessing -- they are focusing on that willfully retained line over and over again saying, if he willfully retained documents, why is it that he's not facing any charges?

This is why this is a political gift, as you said. It's going to be something that they can double down on. And it's going to be something you're going to hear over and over again that combined with that language in that report that talks about Biden's mental faculties, something that Donald Trump was already doing on the campaign trail.

TAPPER: All right. Kristen Holmes, thanks so much.

Let's bring in CNN senior legal analyst Elie Honig, former assistant U.S. attorney for the Southern District of New York. Elie

And, Elie, let's just do a little fact check here. Obviously, what President Biden is accused of is serious and the special counsel Hur compares what Biden did to that if previous presidents, Reagan, et cetera and says that those are similar, but he says, when it comes to the allegations set forth in the indictment of Mr. Trump and President Biden just read this, that has more serious aggravating facts.

So, is President Trump correct when he says what Biden did as a legal matter is worse?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: No, he's coming from opposite world here. First of all, there is a lot of bad news in this report --

TAPPER: Yeah.

HONIG: -- for Joe Biden that we'll get to in a moment. But virtually, every word of Donald Trump's statement is absolutely

false. For example, Donald Trump says, quote, I cooperated far more than Joe Biden. To the contrary, Joe Biden, once these documents were discovered, cooperated essentially completely with the special counsel.

Donald Trump obstructed justice. He tried to get rid of evidence. He tried to get witnesses to lie, complete opposite conduct.

Donald Trump says also that Joe Biden had 50 times more documents than I had. We don't have any precise count in this report, but Donald Trump had hundreds of classified documents. This report really deals with two batches that Joe Biden had of classified documents.

And then Donald Trump repeats the tired false refrain that he somehow protected by the Presidential Records Act.

[16:25:01]

TAPPER: Right.

HONIG: That has no application to any of this.

TAPPER: All right. So, beyond that, the fact that they did not prosecute -- they chose to not prosecute -- first of all, they couldn't prosecute President Biden right now anyway. But the fact that they're not recommending prosecution for when Biden leaves office, does that qualify as an exoneration?

HONIG: Well, the good news for Joe Biden is there's no charges and they don't recommend charges. The bad news is pretty much everything else for Joe Biden.

Let's just run through real quick some of the findings that Robert Hur makes.

First of all, Joe Biden retained classified documents. They were marked as classified. They were top secret. They were the highest level. They had to do with our foreign policy, our national security.

Joe Biden knew it. He's on tape referring to the classified documents --

TAPPER: In 2017, yeah.

HONIG: In 2017, when he was out of office. And I think the most damning fact here is Joe Biden disclosed that information to his ghost writer. That is really problematic.

Now, let me just point this one thing out. Here's a sentence that Robert Hur writes on page one of his report. He says, President Biden willfully retained and disclosed classified materials after his vice presidency. Do you know what crime Donald Trump was charged with? Counts 1 through 32 of his Mar-a-Lago indictments?

TAPPER: Willful retention. HONIG: Willful retention of national defense information. It almost tracks word for word with what Robert Hur finds here.

Now, the natural next question was, well, then, why didn't Robert Hur recommend charges? As you say, you cannot charge under DOJ policy, the sitting president. And the answer is, it's his exercise of prosecutorial discretion. Prosecutors are supposed to think about factors like, how will this play with the jury, are their defenses. And that's where her talks in a way that's probably politically damaging about Joe Biden's age and his memory and his mental capacity.

TAPPER: Yeah. But --and -- but we said while we were covering the Trump classified documents case, that it seemed likely, a lot of our legal experts, I think including you --

HONIG: Yeah.

TAPPER: -- that if Trump had just turned them over and cooperated the way the President Biden did, he might not have been charged with anything.

HONIG: I still think that's absolutely true and you can see that play out here.

Prosecutors absolutely should consider. You have to look, first of all, did the person have documents? Did they know about it where they classified and sensitive? Yes. Yes and yes, for both Trump and Biden. But you have to look at things like -- factors like, was the person cooperative? Did they turn things over on the one hand, which Joe Biden did, and on the other hand, did they obstruct?

And Donald Trump didn't just lightly obstruct. Let's remember. This -- he all out obstructs. He tries to destroy physical evidence. He tries to intimidate, bribe -- not bribe -- intimidate, influence witnesses --

TAPPER: Yeah.

HONIG: -- to not tell the truth. He tries to hide documents from his own lawyer, from the grand jury.

That makes a big, big difference to a prosecutor who's making that, not always black and white decision of charge or no charge.

TAPPER: In fact, a Biden special counsel, the one who is going on -- going after him said that Trump, quote, obstructed justice by enlisting others to destroy evidence and then to lie about it, as if he was anticipating that Donald Trump was going to come out and say, see it's the same thing.

HONIG: Yeah, it's interesting that he put it in there.

TAPPER: Really, and he put it in there on page like 10 or 11.

HONIG: Right.

TAPPER: Pretty high up.

HONIG: Two things that I think are important to note here.

Number one, Robert Hur, let's just make sure we understand who he is. Robert Hur was a Trump nominee to be us attorney few years ago when Trump was, of course, president. Then Merrick Garland appointed him to be the special counsel in this case. So, it's harder for me to see either side saying he's some sort of politically motivated hack. He's an experienced prosecutor. He's a Trump nominee, but Merrick Garland chosen to do this job. He seems to me to be a strong pick in terms of credibility.

Here's the other thing. Donald Trump will make a motion to dismiss his case based on this. There is a motion in the law called selective prosecution. It's very, very difficult to succeed on. I don't think Trump will succeed.

But what you have to do is show someone who behaved similarly to me was not charged while I was.

TAPPER: Oh, you think that's why special counsel her put that?

HONIG: I think -- I think he could well be that -- he's a prosecutor. He knows about this motion. It could be thinking about that. So that motion will come from Donald Trump. This gives him some fodder for that. I don't think it means he'll succeed, but now he'll say, see how similar my cases to Joe Biden, I got charged and he did it. So watch for that.

TAPPER: By the way, if Donald Trump had not put out this false statement, we would have just spent the last ten minutes talking --

HONIG: Good point.

TAPPER: -- about Joe Biden and the scathing descriptions of his memory and faculties, according to the special counsel.

Elie Honig, thank you so much.

This comes, of course, on the same day that leaders of the Biden's 2024 campaign team are meeting to chart their way forward in this big election year. My next guest was essentially a voice for Biden's messaging, led his communications team at the White House, knows him very well. We're back in a moment.

(COMMERCIAL BREAK)

[16:34:01]

TAPPER: And we're back with our breaking news. President Joe Biden willfully retained classified information, according to a scathing report from special counsel Robert Hur, but the president will not face criminal charges. The report says prosecutors would not be able to prove they don't think that Biden intended to break the law, but the reason behind that is interesting. The report also contains a concerning assessment of President Biden's

faculties and his memory. Investigators finding in his quote, memory was significantly limited in interviews they conducted. They concluded it would be difficult to get a jury to convict a, quote, sympathetic, well-meaning, elderly man with a poor memory, unquote.

This from the report: Biden did not remember when he was vice president, forgetting on the first day of the interview when his term ended, quote, if it was 2013, when did I stop being vice president? Unquote. And forgetting on the second day of the interview when his term began, quote, in 2009, am I still vice president, unquote.

He did not remember even within several years the report says when his son, Beau died.

[16:35:03]

It was May 2015.

Though the White House and Biden's attorney objected to the description of the president's memory when he was interviewed about the documents, we should note.

Let us bring in former Biden White House communications director Kate Bedingfield and CNN special correspondent Jamie Gangel.

Kate, I'm sure you're excited to answer my questions on this, but --

KATE BEDINGFIELD, CNN POLITICAL COMMENTATOR: I'm always happy to answer your questions, Jake.

TAPPER: I'm sure there are Democratic voters out there. We know polls at the already think that a majority of Democrats, not just voters in general, but Democrats are concerned President Biden is too old to be president. I'm sure some of them today are looking at these news reports and saying, this guy might've been a great president, but he should not be the nominee. What do you say to that?

BEDINGFIELD: Well, look, I mean, there is some editor -- some editorializing in this report about Biden's memory, and I think if you think about what it takes to sit down for one of these interviews and asked to be -- asked to recall information, dates, specifics about things that happens seven, six, eight years early.

TAPPER: To not know what year you're vice president?

BEDINGFIELD: He's got a lot on his plate. He's working on a lot of different things. He as he himself said, this interviews happen the day after the attack in Israel, so he had been consumed with dealing with that.

I think anybody sitting down for an interview like that where you're being asked specific dates over and over again, you're not going to remember every single one. So there's some editorializing in the report about his memory, but I think let's look at what the report actually says, which is, you know, this was a year-long investigation, 7 million documents, hundreds of witnesses, and no charges recommended.

I mean, I think the special counsel here did probably the most detailed and involved investigation that you could do of this situation, looked for every opportunity to say that Joe Biden had acted in a way that deserve charges and didn't find that. So, the other clear thing that we see in this report is the distinction between Joe Biden's case and Donald Trump's case, where -- where you have -- you have the special counsel saying Donald Trump intentionally obstructed justice. Joe Biden said, take whatever you need, look at whatever you want. I'm a totally open book on this. And that's a huge, huge difference.

TAPPER: Jamie, what are the White Houses options here? I mean, it seems to me like as a PR matter, as a legal matter, this is done. It's a W, but as a political and PR matter, this could be bad. But they're choosing just to emphasize the positive.

JAMIE GANGEL, CNN SPECIAL CORRESPONDENT: I think it is bad. I don't think there's any in question about it. So look, it is true. Everything Kate said about his cooperating I covered the story from the beginning. They absolutely cooperated. You know, things are found in an office that had been locked up for years.

Trump will try to say, look, you know, this was the same thing. But the fact that they didn't bring charges linked to these memory issues about his son, about when he was vice president, these are poignant things that people remember. I think it probably won't be long before some Biden's surrogates remind people that Donald Trump just confused Nikki Haley and Nancy Pelosi.

TAPPER: Sure.

GANGEL: So we have two elderly people running but I think this is bad news for the White House.

TAPPER: So lets talk about that a little bit more because this is a particularly bad week for this report and its comments about President Biden's faculties and his memory to come out because twice this week, he has acted as if he, in 2021, spoke to European leaders who have been dead for years. Once he confused Francois Mitterrand, who died in 1996, with Emmanuel Macron, who is still very much alive and another time he was referring to Angela Merkel until recently, the chancellor of Germany, and referred to Helmut Kohl, who I think died in 2017.

So this memory issue is already out there.

BEDINGFIELD: But I want to know how many voters in Michigan, Wisconsin, you think know the difference between Kohl and Merkel.

TAPPER: No, no, no, but, but they know somebody --

BEDINGFIELD: Or are going to cast their vote -- well, you asked, you asked.

TAPPER: Sorry, okay. BEDINGFIELD: Or are going to cast their vote for president based on

whether someone is naming Emmanuel Macron or Francois Mitterrand, whose name they probably don't even know. So, I think --

TAPPER: But it's not about them, it's about faculty and memory, and whether or not somebody they perceive is competent.

You saw the poll in NBC News that had like Donald Trump is something like 48 percent perceived him to be competent, and like 32 percent perceived President Biden -- I'm not saying that that's accurate, but that's the perception.

BEDINGFIELD: Well, right. And so, they're going to look at how is he doing the job? They're going to look at what is he gotten done. They're going to listen to what he's got to say as he's traveling, as he's campaigning over the next nine months, they're going to hear, as Jamie noted, they're going to hear Donald Trump out there saying, you know, Nikki Haley and Nancy Pelosi inverting their names, they're going to hear him saying all sorts of things that are shall we say a casual relationship with the truth?

I mean, this is a campaign where you're going to have Donald Trump out spewing invective every day and talking about retribution. And people are going to make a decision about which person is going to be the best president for them, and is going to do things that's going to make their lives better.

[16:40:04]

Not who can name Francois Mitterrand or Emmanuel Macron.

TAPPER: All right. (INAUDIBLE)

Kate Bedingfield and Jamie Gangel, appreciate it.

The other major legal story of the day, how historic arguments reveal that Donald Trump had a good day at the U.S. Supreme Court. Learn why and hear from key players in the room. That's in a moment.

Stay with us.

(COMMERCIAL BREAK)

TAPPER: And we're back with the other major story in our law and justice lead. Colorado's 2024 presidential ballot will likely include former President Donald Trump, despite the state's unprecedented effort to remove him from the ballot. The United States Supreme Court today heard oral arguments in the case after the Colorado Supreme Court ruled that Donald Trump was ineligible for office under the so- called Insurrection Clause in the 14th Amendment to the U.S. Constitution.

[16:45:01]

And look, it takes a lot to unify this very divided U.S. Supreme Court. But today, all nine U.S. Supreme Court justices seem to display at least some skepticism of the arguments from the attorneys representing the Colorado voters who challenged Trump's eligibility. And there are questions seemed to suggest potentially support for Trump in this ballot dispute.

Much of it summed up in a key point from Justice Elena Kagan, who we might remind you, was appointed by President Obama.

(BEGIN AUDIO CLIP)

JUSTICE ELENA KAGAN, SUPREME COURT: I think that the question that you have to confront is why a single state should decide who gets to be president of the United States. And other words, this question of whether a former president is disqualified for insurrection, to be president again is, just say it, it sounds awfully national to me.

(END AUDIO CLIP)

TAPPER: In other words, while Colorado was the focus, the high courts decision could have major ramifications across the nation, in other states that have pending litigation to remove Trump for their 2024 ballots.

A ruling in favor for of Colorado, which, of course, is still possible, could send the entire election into a tailspin Kagan seem to be suggesting which would be something that the us Supreme Court might not want to do.

CNN's Paula Reid takes us now inside this historic hearing with a deeper look at the justice's questions and what those questions might indicate about their eventual ruling.

(BEGIN VIDEOTAPE)

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT (voice-over): In the most anticipated Supreme Court case of the year, the justices signaling that they will side with Donald Trump on the question of whether he's eligible for the 2024 ballot. The former president did not attend Thursday's arguments. Most justices didn't address his role in the January 6 insurrection, instead focusing on legal arguments around the 14th Amendment.

Trump's lawyer, Jonathan Mitchell, an experienced Supreme Court advocate, argued Trump isn't covered by the so-called insurrectionist ban.

JONATHAN MITCHELL, TRUMP'S LAWYER: A ruling from this court that affirms the decision below would not only violate term limits, but take away the votes of potentially tens of millions of Americans.

REID: And argued January 6 was not even an insurrection. Only one justice asked about whether it was.

JUSTICE KETANJI BROWN JACKSON, SUPREME COURT: So, the point is that a chaotic effort to overthrow the government is not an insurrection?

MITCHELL: This was a riot. It was not an insurrection. REID: Jason Murray argued for Colorado voters who won their case at

the lower court.

JASON MURRAY, COLORADO'S LAWYER: By engaging in insurrection against the Constitution, President Trump disqualified himself from public office. States have the power to ensure that their citizens' electoral votes are not wasted on a candidate who is constitutionally barred from holding office.

REID: But the justices appeared much more skeptical of his argument.

JUSTICE CLARENCE THOMAS, SUPREME COURT: Do you have contemporaneous examples? And by contemporaneous, I mean, shortly after the adoption of the 14th Amendment, where the states disqualified national candidates, not its own candidates, but national candidates?

REID: In an ominous sign, the chief justice said Murray's arguments were at war with history.

CHIEF JUSTICE JOHN ROBERTS, SUPREME COURT: That seems to be a position that is at war with the whole thrust of the 14th Amendment and very ahistorical. The whole point of the 14th Amendment was to restrict state power.

REID: And question the consequences of a ruling in favor of Colorado and other states then following suit.

ROBERTS: It'll come down to just a handful of states that are going to decide the presidential election. That's a pretty daunting consequence.

REID: Even Liberal Justice Elena Kagan asked this.

KAGAN: I think that the question that you have to confront is why a single state should decide who gets to be president of the United States.

REID: It was Murray's first time arguing before the high court. He engaged in several contentious exchanges with the justices. And even as a former clerk, it didn't stop Justice Gorsuch from scolding Murray.

JUSTICE NEIL GORSUCH, SUPREME COURT: No, no, no, we're talking about the Section Three, please don't change the hypothetical.

REID: And even though the argument seemed to go well for Trump, he still wanted the last word, addressing reporters outside Mar-a-Lago.

DONALD TRUMP, FORMER U.S. PRESIDENT & 2024 PRESIDENTIAL CANDIDATE: Can you take the person that's leading everywhere and say, hey, we're not going to let you run. You know, I think that's pretty tough to do, but I'm leaving it up to the Supreme Court.

(END VIDEOTAPE)

REID (on camera): It's unclear how long it will take the justices to issue their opinion. The chief justice will likely take as long as he needs to build consensus across party lines and come up with a compromise, likely a very narrow ruling that shows some unity on the court.

This is an institution that is increasingly under scrutiny for concerns about ethics and partisanship. This is an opportunity to allay some of those concerns. Jake, this has as much a test for Chief Justice John Roberts, as it is for Donald Trump.

TAPPER: All right. Paula Reid at the U.S. Supreme Court for us. Thanks so much.

Joining us now, Norma Anderson, a 91-year-old Republican from Colorado.

[16:50:04]

She's the lead plaintiff. She's suing to keep Donald Trump off the ballot. Her name is on the legal filings at the center of arguments in the Supreme Court today.

Also with us, Donald Sherman, who represents Norma Anderson and he's executive vice president and chief counsel of Citizens for Responsibility and Ethics in Washington or CREW, which is a good government group.

And, Norma, we should just mention for our viewers who don't know this, not only are you a Republican, you're -- not only are you a former state representative in Colorado, not only are you a former state senator in Colorado, you are the former state majority leader in the state House and the state Senate. That's how much of a Republican you are.

NORMA ANDERSON, FORMER COLORADO STATE LEGISLATOR & LEAD PLAINTIFF: Correct.

TAPPER: So, first of all, what was it like to be at the center of this historic case? Forget the -- what the result is going to be. We don't know.

ANDERSON: We don't know, and we won't know until they tell us.

TAPPER: But regardless of that, you are now -- even more than you were -- part of history.

ANDERSON: Yes. But somebody has to do it. Why not me?

TAPPER: Right and do you feel proud? Even if ultimately the court goes against you? Will this have been worth it?

ANDERSON: Yes, absolutely.

TAPPER: Why?

ANDERSON: Because my reason is I'm concerned about our democracy. If we don't do something about saving it, I see it slipping. I've lived long enough at 91 to go through many, many precedents. None of them challenged the election as this one did, which tells me that he will challenge other constitutional things and other things in a democracy. He has yet to accept that he lost.

TAPPER: And, Don, CREW filed this Colorado law suit. You heard the U.S. Supreme Court justices earlier today.

Are you satisfied with how Jason Murray represented your side and your cause, Colorado voters in court today? And do you see any scenario where you get the verdict you want?

DONALD SHERMAN, MEMBER OF LEGAL TEAM REPRESENTING NORMA ANDERSON: Well, first, I'm absolutely satisfied with Jason Murray's performance. The justices asked tough questions in part because we have asked them to make a historic decision, not just for Norma and the voters that we represent, but for the Republican looking voters of Colorado and perhaps the nation. So, it wasn't surprising that both sides got skeptical and incisive questions, but certainly the stakes are higher on -- you know, if we prevail. And so, it's not surprising that the justices had tougher questions for Jason, which I thought he handled ably.

TAPPER: The -- lot of legal analysts think that the other side is going to win. And I'm wondering if you share that opinion or if you hope springs eternal for your side.

ANDERSON: I always wait until the end because I can't guess an outcome. Every time I try, I'm wrong.

TAPPER: What about the argument that I'm not going to go through the entire court case again, but what about the argument that if your side wins, this case, whenever they rule, that just means that this will be something that the other side uses against a Democratic president inappropriately.

For instance, we've already heard some Republican governors say, well, maybe what's going on at the border that President Biden is not doing enough to take care of. Maybe that counts as insurrection or rebellion.

ANDERSON: Well, but everyone forgets is, are trial judge found Trump guilty of insurrection.

TAPPER: Right.

ANDERSON: And he had a chance to answer the charges.

TAPPER: Trump did, yeah.

ANDERSON: Yes.

So therefore, they would have to find somebody guilty.

TAPPER: So the other thing is, what if -- as other legal experts are anticipating, the Supreme Court goes forward with some sort of splitting the baby decision and rules against you on this. But rules that Donald Trump does not have immunity in that other case that is working his way through the system, or at the very least they let the us appeals court standing decision stand, would you be okay with that? I know that that's not what you want, but how would you feel?

ANDERSON: I'd be very happy if he lost immunity?

TAPPER: And what about you?

SHERMAN: Well, I mean, I see the immunity question raises something interesting, which Trump's lawyers raised at the oral argument today. He suggests that states can enforce Section Three, suggests that courts can't enforce Section Three.

Then when asked about the criminal immunity statute, which it isn't sort of perfectly matched with Section Three, he also said that the president had immunity.

[16:55:04]

The entirety of Trump's argument is that he is somehow special and that Section Three, and it doesn't apply to him that the federal criminal statute can apply to him, and that he is above the law, even the exception, that Jonathan Mitchell argued about the office -- officer question as the justices asked him, is meant to cover just Donald Trump because at least in Mitchell's estimation Trump and oh, George Washington are the only president who were elected, but had not pretty he recently taken a article or Section Six oath to support the Constitution.

And so I think underlying your question is, is Trump's main argument, which is that no law, whether it's federal criminal law or the Constitution of the United States should apply to him.

TAPPER: So your name is now going to be up there with Madison, Marbury, Anderson?

ANDERSON: Yeah.

TAPPER: Not bad.

ANDERSON: Not bad at all.

TAPPER: No matter what happens, historic.

Great to have you here. Thank you so much.

ANDERSON: Thank you.

TAPPER: And safe travels back to -- back to Colorado.

ANDERSON: Thank you very much.

TAPPER: Thank you so much for being here. Really appreciate it.

SHERMAN: Thank you. TAPPER: Coming up, the skating details, attacking President Biden's

memory from the special counsel's report, will that -- those scathing comments stick with voters when they go to the polls in November? Don't go anywhere.

Stay with us.

(COMMERCIAL BREAK)