Return to Transcripts main page

The Lead with Jake Tapper

Special Counsel Report: Biden Willfully Retained Classified Information But Will Not Face Charges; Rep. Daniel Goldman, (D-NY), Is Interviewed About Joe Biden, Special Counsel's Report, Colorado Ballot; Supreme Court's Questions Suggest Support For Trump In Ballot Dispute; Supreme Court's Questions Suggest Support For Trump In Ballot Dispute; Released Hostage And Her Husband Join The Lead. Aired 5-6p ET

Aired February 08, 2024 - 17:00   ET

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

(COMMERCIAL BREAK)

[17:00:48]

UNIDENTIFIED MALE: This is CNN Breaking News.

JAKE TAPPER, CNN HOST: The breaking news in the law and justice lead, damning report released late this afternoon from special counsel Robert Hur in President Joe Biden's mishandling of classified documents after he was vice president. The report includes photographs of documents far from securely stored at Biden's Delaware home, showing them kept under his T.V. in his Delaware home, classified documents about Afghanistan barely stored in an old box in his garage surrounded by household debris. Special counsel ultimately concluded, quote, "the evidence does not establish Mr. Biden's guilt beyond a reasonable doubt. Therefore, prosecution of him would be unwarranted."

Part of the reason for that, however, is that, quote, "We have 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," unquote. Hardly a bumper sticker for a 2024 presidential campaign. The report repeatedly notes President Biden's memory issues, stating, quote, "He did not remember even within several years when his son Bo died," which was 2015. In the last hour, President Biden reacted to the outcome of this report.

(BEGIN VIDEO CLIP)

JOE BIDEN, PRESIDENT OF THE UNITED STATES: Special counsel acknowledged I cooperated completely. I did not throw up any roadblocks. I sought no delays. In fact, I was so determined to give special counsel what they needed. I went forward with a five hour in person interview over the two days of October the ninth, eighth and ninth last year, even though Israel had just been attacked.

I was especially pleased to see the special counsel make clear the stark differences between this case and Donald Trump.

(END VIDEO CLIP) TAPPER: I want to bring in CNN Senior Justice Correspondent Evan Perez.

Evan, walk us through the significance of this report.

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Well, Jake, look, I mean, the bottom line here is the use of the word by the special counsel of willful retention. I mean, that's a big deal. It's a big finding from a legal standpoint for the Justice Department because it says that Joe Biden knew he was holding on to classified documents at the time that he was not supposed to after he had left the vice presidency. Then they go on to explain all of the various reasons why they believe they could not sustain a prosecution or conviction of the president. And one of the things they point out, obviously, you read that quote about the fact that the president would present himself as a well-meaning elderly man with poor memory.

But they also go on to say that there is other pieces of evidence, including the fact that Joe Biden believed some of these notebooks, that the most damning evidence is contained in these notebooks, which contain his notes from situation room meetings, from his memo that he provided to then President Obama in 2009 arguing against the surge, the troop surge, that Joe Biden believed he had a right to retain those notebooks. As a matter of fact, they point out that in an interview, in the interview with the president, he says, I thought these notebooks were mine. They were my personal property. And the special counsel points out, by the way, Jake, that going back to Ronald Reagan, presidents and, you know, people who and served in these offices have believed that their notes were theirs to keep and that the Justice Department has never investigated them.

Now, the obvious comparisons to Trump, you see President Biden there bringing up Donald Trump, and you know, you look at the pictures you just showed, right, if you compare that to the gilded bathrooms in Mar-a-Lago where Donald Trump was storing some classified documents, people are going to make those comparisons. They're also going to make comparisons to the fact that Donald Trump is accused, in his case, of willful retention of classified documents.

The difference, obviously, are many. Robert Hur goes into that. He says that obviously Donald Trump retained these documents after he received a subpoena. He obstructed the investigation, instructed people, he's accused of instructing people to lie to investigators. None of those things are present in this case. Joe Biden was very cooperative, sat for interviews and invited the FBI to come in and search.

[17:05:07]

TAPPER: Interesting stuff. Evan Perez, thank you so much.

Let's go straight to CNN's Manu Raju on Capitol Hill, where I'm sure this report is having a huge effect.

And Manu, this report politically, and you didn't have to do this legally, I suppose, but it is one of the reasons why they decided not to prosecute, politically, the report hones in on then Vice President Biden's age, his inability to remember key events, both when he was former vice president and as president. Are any Democrats concerned about the politics of this?

MANU RAJU, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Well, they've been concerned about Biden's age as a vulnerability for some time, given that polls after poll has shown that being a major issue for voters across the country. But in the aftermath of this report, there has not been much Democratic reaction so far. In fact, the top Democratic leaders, Chuck Schumer in the Senate, Hakeem Jeffries in the House, neither of them have commented so far. Chuck Schumer was approached by reporters, declined to comment about this.

We've heard from some other rank and file Democrats who have been walking through the Senate, been asked questions about these reports and specifically about concerns about Biden's mental acuity. One of them, Senator Richard Blumenthal of Connecticut, telling reporters that Biden is, quote, "As sharp as ever." Saying that, I don't know where they are, claiming their medical expertise, but the American people can be the judge of Joe Biden's memory. That has been echoed by others as well, including Mark Kelly of Arizona.

We have heard some Democrats echo the line from Joe Biden that he gave to House Democrats just moments ago saying that this is a much different situation than what happened with Donald Trump. They can't compare the two. But the question, of course, they have to make that in the eyes of voters who will be assessing all this, Jake.

TAPPER: And how are Republicans responding to this report?

RAJU: Well, they're jumping all over the mental acuity question. That has been one of the things that almost every Republican who has put out a statement so far has seized upon. They have also raised questions trying to compare this to the Trump case. Some have said this is a double standard of sorts, but the mental sharpness questions will undoubtedly be won.

They'll be echoed by Republicans down the line, including from the speaker of the House himself, who put out a statement with Republican leadership talking about this report, saying, "Among the most disturbing parts of this report is the special counsel's justification for not recommending charges, namely, that the president's memory had such significant limitations that he could not convince a jury that the president held a mental state of willfulness, that a serious felony requires. A man too incapable of being held accountable for mishandling classified information is certainly unfit for the Oval Office."

Now, we also caught up with Senator Lindsey Graham, who is the top Republican on the Senate Judiciary Committee. He said he had not yet reviewed the report, and he answered questions about the concerns that were raised by it.

(BEGIN VIDEO CLIP)

SEN. LINDSEY GRAHAM (R-SC): The summary of the special counsel about the status of President Biden was unnerving. I mean, people from all over the world going to read that. And basically one of the defenses, was he's a nice man whose elderly and can't remember. I mean, that's the special counsel's observation of President Biden.

Yes. I've tried not to say anything about, you know, Bo was a great man. I mean, listen, I haven't gone down that road, but now I don't know what to tell people. I mean, the special counsel's observation was pretty stunning.

(END VIDEO CLIP)

RAJU: Of course, Graham, being in the minority in the Senate does not have investigative power. He cannot issue subpoenas. That is not the case, of course, on the House side, Republicans are in charge. They're already investigating Joe Biden as part of an impeachment inquiry that was not focused on this issue of handling classified documents. The question, Jake, will be in the weeks and days ahead is whether or not this investigation will shift in any way. They've had a hard time moving forward with an impeachment inquiry, convincing Republicans that Joe Biden committed impeachable offenses.

How do Republicans deal with this in the aftermath of some of the questions here, even though the special counsel did not recommend any charges being pursue. But undoubtedly, Republicans will not drop this when they come back into town. The House is out of session now. They get back on Monday and they'll be talking about this then as well, Jake.

TAPPER: All right. Manu Raju on Capitol Hill, thanks so much.

Democratic Congressman Dan Goldman from New York joins me now.

Hey, Congressman, how are you? Today's special counsel Robert Hur's report was released to the public. As you know, he concluded that while he was not going to bring charges, President Biden, in his view, willfully retained classified information. But the reason -- one of the reasons he's not bringing the charges is because he thinks Joe Biden is too old and feeble, essentially, for him to prosecute without the jury finding him sympathetic. What's your reaction?

REP. DANIEL GOLDMAN (D-NY), OVERSIGHT COMMITTEE: I don't by that that's a reason why he didn't prosecute. That's completely extraneous and unnecessary delivered by a Republican trying to make a political statement that has no place in this special counsel's report. The bottom line is that President Biden cooperated fully. As soon as he and his team identified that there were classified documents, he turned them over. He allowed the FBI to search every room in his house.

[17:10:26]

He fully, completely cooperated. And there just simply wasn't evidence that he knowingly and intentionally held classified information with any intent to distribute it. Juxtapose that to Donald Trump, who went to such great lengths to obstruct the FBI's -- first the archives, then the FBI, that he was charged with obstruction of justice, which demonstrates a clear knowledge and intent, and that's why he's charged with his indictment down in Florida and why President Biden has been exonerated today.

TAPPER: Well, as you likely know, I mean, the special counsel, Robert Hur, who you just seemingly suggested was something wrong with his judgment because he's a Republican, he goes into that very early in the report, contrasting what President Biden did with what former President Trump did, noting the differences, calling them, you know, quite stark, I think, the word aggravating factors he used. So, I mean, he's on the same page as you when it comes to that. But the memory lapses that President Biden is described as having in this report. This is not the first time anybody's raised issues of President Biden's acuity.

And in fact, twice this week, President Biden referenced European leader's conversations he had with them in 2021, when both those European leaders had long been dead. He confused Macron with Mitterrand. He confused Helmut Kohl with Angela Merkel. Are you really acting as if there's nothing to these issues or these concerns?

GOLDMAN: Well, I saw from the White House counsel that they disputed this recollection of the interview. And I will tell you, Jake, I was in Israel on October 7, as you know, and President Biden was nice enough to call me. And I can tell you, this was the day before that interview, I can tell you he was sharper than anyone I've spoken to about a very complex geopolitical, urgent issue with the Hamas terrorist attack and had indicated to me that he had spoken to all of the relevant leaders in all of these different countries. His mastery and command of a complicated geopolitical situation was just impeccable. And so, I don't know what happened in there, there's a dispute from President Biden's lawyers.

And the bottom line is that it is completely extraneous to this report. Unlike, for example, Jake, in special counsel Mueller's report where he outlined 10 specific examples where Donald Trump obstructed the investigation, and that wasn't even the classified document investigation. And in this case, Joe Biden, who believes in the rule of law, he believes in our Department of Justice and its independence, cooperated fully, and there's simply no evidence here. I don't understand how he even is able to say that he willfully retained it. He has one example, literally, as far as I can tell, one example of demonstrating any knowledge that he had classified information, and it's not clear whether that's notes or whether it's secured markings, which would be noticeable, whereas the notes would not.

TAPPER: I think the point you're talking about is evidence supports the inference that when Mr. Biden said in 2017 to his ghostwriter of his book that he had, quote, "Just found all the classified stuff downstairs," unquote, in Virginia.

But before you go, because we're running out of time, I do want to ask you about today's historic hearing in the U.S. Supreme Court, where the justices seemed rather skeptical of the argument being made on behalf of Colorado voters that Donald Trump should be kept off the ballot because of the insurrectionist ban in the 14th amendment to the U.S. Constitution. What did you think of the oral arguments? And do you think that the Colorado voters are headed for a defeat?

GOLDMAN: Well, there are a couple things that jumped out to me. First, that there was very little discussion of whether or not Donald Trump actually engaged in an insurrection, which the trial court determined pretty convincingly. And I know there were some questions about that process. But they were focused on, I think, very legitimate democracy, rule of law issues as to whether one state can declare a federal candidate to be invalid and off the ballot, and how that would have an impact on other states, whether or not this is a self-executing clause in the Constitution, which it has been used as before. These are all very technical legal things.

[17:15:00]

But, Jake, the biggest thing for me that I am just shocked about is that Justice Clarence Thomas sat there for oral argument. He had recused himself in the John Eastman case because of his wife's involvement in the January 6 insurrection. But today, in another case involving the same subject matter, he did not recuse himself. This is a crisis of ethics at the Supreme Court. Chief Justice Roberts has said that they can police themselves, but it is clear, based on Clarence Thomas's own actions, that he cannot and they cannot.

And it is high time for Congress to enact significant ethical reforms at the Supreme Court.

TAPPER: Democratic Congressman Daniel Goldman from New York, New York, thank you so much, sir. Good to see you as always.

GOLDMAN: You too.

TAPPER: A powerful interview we have been hoping to bring you for months. In October, I spoke with a man in Israel while his wife and children were being held hostage by the terrorist group Hamas. I'm going to talk to him again, but he will not be alone this time, and you're not going to want to miss that interview.

Also, can President Biden turn this scathing classified documents report to his political advantage or will this haunt him in November? That's next.

(COMMERCIAL BREAK)

[17:20:07]

TAPPER: Two huge political headlines today, the scathing special counsel report on President Biden's willful retention of classified documents, though he decided not to pursue criminal charges and the Supreme Court hearing on the Trump ballot case. Let's discuss both of these with our political experts. Let's start with the case, the U.S. Supreme Court case. What struck you the most about the arguments today?

KATE BEDINGFIELD, FORMER BIDEN WHITE HOUSE COMMUNICATIONS DIRECTOR: Well, it seemed like the justices were leaning toward Donald Trump's side of the case here. I mean, you didn't hear a whole lot about what caused, what defines an insurrection, whether he participated insurrection. I mean, you didn't really hear a lot of questions about the kind of one of the fundamental lines of attack, perhaps for lack of a better word here. It didn't seem like they were really buying the argument. I would -- you know, I'm certainly not a legal scholar, you know, as a political expert, I would probably argue that at the end of the day, it will be better for Donald Trump to be defeated at the ballot box than to be defeated in the court.

I think that is probably a better outcome for Democrats politically. Obviously, the justices will do what they're going to do. But it didn't sound like from the arguments today that it was moving in Colorado's favor.

TAPPER: Except, Joe, it's entirely possible that he won't be defeated at the ballot box.

JOE WALSH, (R) FORMER U.S. REPRESENTATIVE, ILLINOIS: Exactly. And we'll talk about that with our second issue in a moment. I agree with Kate. It's -- what's disappointing, Jake, is I think they're going to overrule Colorado. But it seemed to be kind of a practicality argument. I just don't know how this would work. If we supported Colorado, what about all the other states? There was no discussion of insurrection.

TAPPER: A little, there was a teeny bit.

WALSH: Little bit. No engagement as to whether he committed insurrection, which I think he did. But who am I? That was disappointing. But the facts, the law and the Constitution, it seemed to just be, how the heck could we make this work?

I wanted more than that.

TAPPER: Let's turn now to the report from special counsel Robert Hur, who concluded that he's not going to bring criminal charges. And one of the reasons he's not bringing criminal charges is because he thinks it would be difficult to prosecute President Biden when he's no longer president because he might appear, quote, "Sympathetic, well-meaning elderly man with a poor memory." Now the White House is pushing back one official telling CNN that they viewed some of the criticism outlined in the report as way out of line and just wrong. But this is obviously going to be used quite a bit. It's already being used by Speaker Johnson.

If you're too old and feeble, I'm paraphrasing, but Speaker Johnson is saying something along the lines, if you're too old and feeble to be held accountable for classified documents, then you're too old and feeble to be president. What's your take on it all?

WALSH: Here's my take, Jake, and I say this as someone who very publicly doesn't want Donald Trump anywhere near the White House again. This is troubling. And Kate and I have talked about this before. This age issue is a huge issue. And I think only Joe Biden can address this issue. Even before this report today, this was going to be a huge issue.

Biden's got to get out there and aggressively show the American people he can do the job. And if he can do that, he's going to win.

BEDINGFIELD: I think it's also important to note, though, I mean, he didn't decline to pursue charges solely because he believed Biden wouldn't be found guilty by a jury. I mean, I think that's not an entirely --

TAPPER: No, it's part of it.

BEDINGFIELD: -- that's not an accurate representation.

TAPPER: Partly.

BEDINGFIELD: I mean, he spent a year investigating this case, looking at documents, talking to hundreds of witnesses, and declined to pursue charges because he didn't feel they were justified. So, I would just -- you know, it's not like he spent a year looking at this case and then said, well, we couldn't win in front of a jury because it seems like he's old. That's not what the report --

TAPPER: It's (inaudible).

BEDINGFIELD: That's not what the report is about.

TAPPER: It's a -- that's -- it's certainly one of the reasons, it's certainly without question, it's one of the reasons that they didn't bring the --

BEDINGFIELD: There is no question, there is a lot of editorializing in this report about President Biden's interview. And you know, I think what the American people are ultimately going to do is they're going to watch him on the campaign trail, they watch him in the White House. They're going to make a judgment between Donald Trump, who, by the way, can't remember whether he's -- who he's running against or whether it's Nikki Haley or Nancy Pelosi.

TAPPER: Right.

BEDINGFIELD: They're going to make a judgment about which of those two men is going to get things done for them. And I think Joe Biden's got a winning case on that.

TAPPER: And we have covered when Donald Trump mistook Nikki Haley and Nancy Pelosi. And we have covered many other things along those lines. But then there is this I see dead people thing that happened this week by President Biden.

WALSH: Yes.

BEDINGFIELD: Twice he has alluded to conversations he had recently with long dead European leaders. Here is one he's talking about, this is Sunday, talking about a meeting with French President Francois Mitterrand, who died in 1996. He meant to be referring to the current French president, Emmanuel Macron. Take a listen.

Well, in any case, the sound says -- Biden says, right after I was elected, I went to what they call a G-7 meeting, all the NATO leaders. It was in the south of England. Oh, here we go. OK, great. Let's run that clip.

[17:25:11]

(BEGIN VIDEO CLIP)

BIDEN: Right after I was elected, I went to what they call a G-7 meeting, all the NATO leaders, it was in the south of England. And I sat down and I said, America's back. And Mitterrand from Germany -- I mean, from France looked at me and said, you know, what -- why -- how long are you back for?

(END VIDEO CLIP)

TAPPER: Again, not only did Biden confuse Macron with Mitterrand, at another event, he mentioned meeting with Helmut Kohl, who died in 2017. Again, referring to talking to Helmut Kohl, basically the same story, by the way, and I know he's an old Irish pal, he tells a lot of stories, but like basically about same -- telling the same story about 2021 when Helmut Kohl had been dead for four years.

Now, I know you're saying that people in Michigan don't care. Somebody confuses Macron with Mitterrand.

BEDINGFIELD: I just -- I want you to find me the vote --

TAPPER: You already said --

BEDINGFIELD: I want you to find me the voter --

TAPPER: But the point --

BEDINGFIELD: -- who says I will not vote for him because he said Mitterrand and not Macron.

TAPPER: It's not about that. It's about -- help me out here, Joe.

WALSH: No, they do. They do. This is a huge issue that I think a lot of voters have trouble even articulating publicly, but it's a big concern. And again, Kate, I say this as someone who wants him to win, they can't ignore it, they can't tiptoe around it. They can't talk about the economy.

Joe Biden has to look the American people in the eyes and say, this is me. This is who I am. If he can't do it, that he's going to lose to an insurrectionist.

TAPPER: But your point is the American people are going to see him and get their measure of the man and make their decision. And that's what today's polls reflect, though, is my point. He's been president now since 2021.

BEDINGFIELD: Well, but there's also -- you know, we have not been in the thrust of a presidential campaign. People have not really thought about Donald Trump in the way they were thinking about him day in and day out when he was president. So, there's going to be a contrast here. I think that Joe Biden's going to come out favorably. I also think he is out every day making the case.

He's talking about what he's getting done. This is going to be a very aggressive of campaign. And I think at the end of the day, in the measure of Joe Biden versus Donald Trump, I do think Joe Biden will come out on top.

TAPPER: To maybe (inaudible). Thank you both.

At the U.S. Supreme Court today, why the questions were likely more revealing than any of the answers. We'll explain next.

(COMMERCIAL BREAK)

[17:31:27]

TAPPER: And we're back with our Law and Justice Lead, a high stakes hearing today at the U.S. Supreme Court. Let's go straight to CNN's Jessica Schneider. Jessica, what did you hear from the justices that stood out to you?

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Well, Jake, you know, there was real pushback from the justices here against the attorney representing those voters in Colorado who wanted to get trump off the ballot and who succeeded in the win at the Colorado Supreme Court level. And what the pushback that we saw from these justices, we really saw this consensus emerge, particularly toward the end of the arguments, the consensus that the 14th amendment really does not allow states to unilaterally decide to exclude these insurrectionists from the ballot.

We saw the Chief Justice John Roberts really leading the questioning, leading with the skepticism. But he was also joined not only by his fellow conservatives, but even at least one liberal, Justice Elena Kagan. Take a listen to this.

(BEGIN VIDEO CLIP)

JUSTICE SAMUEL ALITO, ASSOCIATE JUSTICE OF THE SUPREME COURT: There will be conflicts and decisions among the states. The different states will disqualify different candidates. But I'm not getting a whole lot of help from you about how this would not be an unmanageable situation.

JUSTICE ELENA KAGAN, ASSOCIATE JUSTICE OF THE SUPREME COURT: Why should that be the right rule? Why should a single state have the ability to make this determination not only for their own citizens, but for the rest of the nation?

(END VIDEO CLIP)

SCHNEIDER: So we saw all the justices really seize on this issue, but they also seem to pick apart other legal issues. And the other legal issues are those that could actually provide an off ramp for this court. They might not have to decide those thornier issues as to whether there was an insurrection and whether or not Donald Trump engaged in an insurrection. Instead, they might be able to look at these issues like, is an officer of the United States even a president? Which it says in the 14th Amendment only applies to an officer of the United States. Could it be that it has to be an office holder as opposed to someone just seeking election for the office? And then there was Justice Kavanaugh, who really seized on this question, you know, is it even for the courts to decide? Take a listen.

(BEGIN VIDEO CLIP)

JUSTICE BRETT KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME COURT: These are difficult questions. And you look right at Section 5 of the 14th Amendment, as the Chief Justice said, and that tells you Congress has the primary role here.

(END VIDEO CLIP)

SCHNEIDER: So the Supreme Court could end up deciding. This isn't even for courts to decide, and that instead, Congress must step in. So either way, Jake, there are a lot of avenues for Trump to win here. And it really appeared that a majority of the justices would side with Trump here.

TAPPER: Yes, that immunity case, of course, is still out there. Jessica Schneider, thanks so much.

SCHNEIDER: Yes.

[17:33:58]

TAPPER: A former Trump attorney who was listening closely to the arguments that the U.S. Supreme Court is going to join us next to discuss. Thanks.

(COMMERCIAL BREAK)

TAPPER: More now in our Law and Justice Lead in what looked to be a good day in court former President Donald Trump on this issue of whether he should be on the ballot in Colorado. With me now, former Trump lawyer, Tim Parlatore. And Tim, I want to get to the U.S. Supreme Court case in a moment, but first, let's talk about the special counsel report into President Biden's mishandling of classified documents. No criminal charges, but it says that it was willful retention of classified documents, which was obviously inappropriate.

TIM PARLATORE, FORMER LAWYER FOR FORMER PRESIDENT DONALD TRUMP: Yes. And this is a statute that I've obviously spent a lot of time looking into.

TAPPER: Right. You worked on Trump's classified documents case.

PARLATORE: Yes. For over a year. And, yes, it's -- I can see where he was looking for reasons to not prosecute, which kind of puts him into a difficult bind of, you know, the mental capacity and his memory. And so if you want to prop it up and say, oh, no, he's very sharp, then shouldn't he be prosecuted? But really, the thing that jumped out to me, obviously, they're making significant distinctions with the alleged obstruction once these documents are found and once law enforcement gets involved.

But the thing that I noticed that's also a big difference is Donald Trump, you know, he left the White House in a very chaotic time. These documents were all basically boxed up, taken to Mar-a-Lago. There was a lot of, you know, this is something that I had written about at the time that requires a legislative solution for. But Joe Biden, it appears from there, intentionally took these things with him.

TAPPER: Because he thought he could, even though he was wrong.

PARLATORE: Right. And that's the difference, is that he intentionally took them. Whereas Donald Trump, it's more about what did he do once he found them.

TAPPER: Well, we covered this at the same -- at the time that you were representing him, which is if Trump had cooperated, he probably, our legal experts would say, wouldn't have been charged. And look, Robert Hur, as unflattering as his description is of Joe Biden throughout much of this report, he says there were serious aggravating factors with Trump, including he did the opposite of, you know, taking advantage of the opportunity to return the classified documents to avoid prosecution. And, quote, according to the indictment, he not only refused to return the documents for many months, he also obstructed justice by enlisting others to destroy evidence and then to lie about it. So, I mean, it's that post behavior that really was the big difference, right?

[17:40:18]

PARLATORE: It is. And again, that's obviously --

TAPPER: That's his opinion in the allegation of the other special counsel.

PARLATORE: Right. It's the allegation. It's not proven yet, but those allegations certainly do, you know, make it appear much more, you know, damning on the one side, a lot of these things are how do you react once the documents are found? And, you know, just as Joe Biden should have returned the documents, yes, the moment that he's telling his ghost rider, hey, I found the classified stuff downstairs, so, too, you know, would Trump have had to do it.

And it's definitely something here where Joe Biden had the opportunity to see what Trump did when he got that subpoena. And then a few months later, he's in his own situation. So I wouldn't be surprised if his lawyers said to him at that time, hey, you just saw what Trump did. Let's treat this case in a way that makes a clear distinction.

TAPPER: Yes. Well, you know, listening to your lawyers is a good characteristic, right? And one that I think Mr. Trump could probably do more of. But let's move on to the other issue, because about the case today, Donald Trump seems to have a rather good day in court.

PARLATORE: Yes.

TAPPER: There's a lot of speculation that the court's going to rule in favor for Trump in the ballot ban case and that they were all, not all. Well, maybe all, actually at least a big majority of them, not just the six right leaning justices appointed by Republicans, but also maybe Kagan, maybe Sotomayor and Jackson, were looking for an off ramp. Do you agree with that assessment?

PARLATORE: I do. You know, when I was listening to the arguments this morning, there was a point where Justice Kagan started asking questions about why should the states have this decision? Shouldn't this be something that's left up to the federal side? And as soon as she said that, I kind of realized, OK, this right here, this question, this is what the ultimate decision is going to be. And I would predict that it's going to be a unanimous decision.

TAPPER: Oh, yes.

PARLATORE: Probably even per curiam, so that they don't actually say who wrote it, and they're going to decide it on a very narrow basis. And I think it's going to very closely mirror that question by Justice Kagan.

TAPPER: And do you think because John Roberts is who he is and likes to be seen as moderate and not Republican or Democrat, not conservative or liberal, do you think that will come maybe even the same day with a decision by the U.S. Supreme Court to not hear the immunity case and to defer to the U.S. appeals court decision that Donald Trump does not have immunity for prosecution?

PARLATORE: You know, I don't think that they're going to want to do it on the same day because then it does look like, you know, gamesmanship, like we're releasing Rob Hurst (ph) report the same day.

TAPPER: Right.

PARLATORE: So I don't think it'll be the same day. You know, whether they decide to deny a cert or whether they decide to grant cert and then, you know, leave the district court or the circuit court ruling in place, I think they would uphold it even if they granted the cert. And so I don't know how he's going to do that as far as timing is concerned. But I don't see where the Supreme Court is going to just overturn it.

TAPPER: All right. Tim Parlatore, always good to have you, sir. Thank you so much.

[17:43:20]

An interview that I hoped we would get to have. I'm going to bring you now. In October, I spoke with a man in Israel while his wife and children were being held hostage by the terrorist group, Hamas. Now he is coming back for another interview. Thankfully, he will not be alone this time because his family is back with him. You're not going to want to miss this. That's next.

(COMMERCIAL BREAK)

TAPPER: Topping our World Lead, Israel estimates that 132 hostages are still being held in Gaza, around 30 of them believed to have been killed. Hagar Brodutch and her three children were taken hostage by the terrorists of Hamas on October 7th. You might remember, I spoke to Hagar's husband and the father of the three children, Avihai, on October 30th when I was in Tel Aviv. Take a listen.

(BEGIN VIDEOTAPE)

AVIHAI BRODUTCH, FAMILY TAKEN HOSTAGE BY HAMAS: I really want my kids, you know, to be right here. And I want Yuval to play soccer and Oriya to play in his Xbox and, you know, Ofri to play her guitar and my wife to be with me. I sleep alone at night. I want to hug my wife, you know, and be with her.

TAPPER: Avihai, I'm sorry.

A. BRODUTCH: Thanks very much.

TAPPER: I want you to come back and I want you to come back with your wife and your two sons and your beautiful daughter. And we'll celebrate. We'll celebrate when they're back.

(END VIDEO CLIP)

TAPPER: Today is that day, although they are not here in studio with me, so I can't give them any gifts. But I'm happy to welcome back to the show Avihai Brodutch. And I'm happy to welcome to the show Hagar. Hagar and their three kids were released in late November after 51 agonizing days of captivity. Avihai, it's so great to see you. And Hagar, it's so great to see you with him. Avihai, what was the moment like when you saw your wife and kids again?

A. BRODUTCH: I want to say it's just -- it's unimaginable. I can't really explain it, you know. I think it's closest to, you know, when Ofri was born, my first, my eldest. I had, you know, it's a heavenly experience having a first child born. And this is times four because, you know, I had three children come back and my wife that I missed so much. So it's a miracle, you know, that happened to me. And this is just like birth is a miracle. This is four times this. It's just incredible. Amazing. I think it over and over again and I can't imagine. It's unimaginable. Marvelous.

TAPPER: Hagar, how are you doing? And how are Yuval, Oriya and Ofri? How are they doing?

HAGAR BRODUTCH, TAKEN HOSTAGE BY HAMAS: We're OK, I think. It wasn't the time. We're talking about Gaza a lot. And it's good for us to do it. Most of the time, we're OK, and we're going to be OK someday.

[17:50:20]

TAPPER: And, Hagar, I want to ask, what can you tell us, what are you comfortable telling us about what you and your three beautiful children experienced while you were being held in captivity?

H. BRODUTCH: Wow. It was hell. It was just hell. We really missed Avihai. And I thought he was dead. Just a few hours before I met him at November 26th, just a few hours before I realized that he's alive. So all the time there I was grieving. And it was just hell. I can't describe what we've been through.

TAPPER: And, Hagar, you spoke at the 24 -- go ahead. I'm sorry.

H. BRODUTCH: No, it's fine.

TAPPER: You spoke at the 24 hours rally in Tel Aviv on the 100th day of captivity for the remaining hostages. And you say releasing the other hostages needs to be Israel's top priority. Do you feel like the Israeli government could be doing more? Could the American government be doing more?

H. BRODUTCH: Yes, absolutely. Absolutely. If I'm here, all of them should be here right now.

TAPPER: And, Avihai, you worked so hard to secure the release of your wife and your children. What's your advice to other families going through this same excruciating nightmare, not even just with hostages in Gaza, but those individuals who might have family who has been being held hostage, for example, in Russia, Evan Gershkovich, who's a journalist, and two other Americans are being held. What advice can you give families who are suffering like you did?

A. BRODUTCH: You know, don't give up. There's always hope. You know, a lot of people around me told me that they didn't believe that my family will be back. They were sure the Hamas is going to slaughter them over there. And I never lost hope. You know, I always felt it in my heart that they're alive and that they're well. And that's how it was. I think, you know, for others, it wasn't like that. But you always -- have to keep your hopes up, have to keep fighting all the time. You know, there's -- miracles are happening all the time, and there's always hope for a miracle. I've got a miracle. It's sitting right next to me and my three kids. So, you know, just hope and do as much as you can all the time. Keep it in the news. You know, you have to call everyone, do everything, if it's parliament members and congressmen. I met so many congressmen and senators in America.

You know, the people of America did so much for me, for my family. I have to thank, I think, the whole of America for my wife being here with me. It's, you know, I got hugged by so many people when I was there. I went to Washington to visit the Americans, the congressmen and people of parliament and the Qatar ambassador, of course, which I have to thank as well. The Qataris did so much for me, for the hostages that returned. So I owe thanks to so many. And there's a lot of work to be done still. And you just have to keep on fighting.

You know, wherever you are in the world, wherever everybody is being held hostage and all this wrongdoing is being done, you just have to keep on fighting and you never give up.

TAPPER: And, Hagar, how did you make it through? How did you mentally and emotionally survive that horrific ordeal?

H. BRODUTCH: It's like your soul and your body, they're changing mode. When you're there, you don't feel anything. You're not hungry, you're not sick, you're nothing. You just survive for your -- for babies, for my three babies and Abigail, you just have to survive.

TAPPER: Yes. Well, I'm so happy that you're out and that Yuval, Oriya and Ofri are out and you guys are all safe. Thank you so much, toda raba, for joining us. Really appreciate it and best of luck to you.

[17:55:04]

H. BRODUTCH: Thank you, Jake.

A. BRODUTCH: Thank you very much.

TAPPER: We'll be right back.

(COMMERCIAL BREAK)

TAPPER: This busy day is going to spill well into the night. Coming up next in The Situation Room with Mr. Wolf Blitzer, former White House officials from both the Biden and Trump administrations reacting to the special counsel's report, concluding there should be no charges against President Biden, despite him willingly keeping classified documents in unlocked, unauthorized locations in his Delaware home.

Then tonight, in the 8 o'clock hour special coverage of Donald Trump's case today before the U.S. Supreme Court. CNN's Anderson Cooper will anchor that along with Kaitlan Collins. Then at 10:00 p.m., Eastern, CNN's Abby Phillip and Laura Coates will lead coverage of the big 2024 election contest with the Nevada Republican caucuses. Donald Trump is headed to that state right now. Keep it here on CNN for coverage of all of today's news.

[18:00:11]

Until tomorrow, you can follow me on Facebook, Instagram, Threads, X, formerly known as Twitter. Plus on the TikTok at JakeTapper or you can follow the show on X at TheLeadCNN. If you ever miss an episode of THE LEAD, you can listen to the show whence you get your podcasts, all two hours just sitting there like a giant Philadelphia pizza pie. Our coverage continues now with Wolf Blitzer in "THE SITUATION ROOM." See you tomorrow.