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Trump's Legal Team Argues For Immunity In Recent Hearing; Drawing Comparisons Between Trump's Legal Situation And Nixon's Era; Nikki Haley Gains Ground, Challenging Trump's Lead In New Hampshire; Former President Predicts Economic Crash, Expresses Preference For It To Occur During Biden's Presidency; Defense Secretary Lloyd Austin Diagnosed With Prostate Cancer; Details Of His Hospitalization Emerge. Aired 2-2:30p ET

Aired January 09, 2024 - 14:00   ET

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

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[14:00:49]

BORIS SANCHEZ, CNN HOST: The immunity arguments. Donald Trump and his legal team argue he cannot be prosecuted for anything he did while president. But can they persuade some skeptical judges and free him from one legal threat as he tries to win the White House for his second term? Plus, playing catch-up. Nikki Haley. Inching closer to Donald Trump's lead in polls in one key state. But if you look at the numbers, it shows the former president has reason to be confident just days before the caucuses in Iowa.

BRIANNA KEILAR, CNN HOST: Smashing records and scaring scientists. 2023 is the warmest year in recorded history, and our planet is on the verge of reaching a potentially catastrophic threshold. We're following these major developing stories and many more, all coming in right here to CNN News Central.

SANCHEZ: Today, we are one step closer to. A historic ruling on presidential immunity. Currently a glaring constitutional loose end. And tying it up is going to have huge ramifications for Donald Trump's criminal cases and for any legal exposure that future presidents might face. This morning, a panel of three judges heard arguments over whether presidents can face prosecution for actions they took while in office. The special counsel says yes. Trump's attorneys mostly say no.

KEILAR: After an hour of oral arguments. The judges will get to hash out -- the judges got to hashing out and eventually writing out the decision. And that's what they will be doing. A decision that in all likelihood will end up in front of the Supreme Court. CNN's Evan Perez was at the hearing and he is now with us here. So, Evan, first, take us through the arguments that were laid out here today.

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Well, the crux of the argument from the former president and his legal team is that, you know, he can't be prosecuted because he has absolute immunity. And so there was an interesting certainly a bunch of interesting moments in this hearing where the judges were testing the limits of that. They were giving hypotheticals of in which what kind of orders a former president or a president could give and still not be prosecuted for him. Here's one in which the judge is simply asking, you know, a pretty wild hypothetical of someone getting assassinated at the order of the president. Listen.

(BEGIN VIDEO CLIP)

JUDGE PAN: Could a president order Seal Team 6 to assassinate a political rival. That's an official act in order to Seal Team 6.

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

JUDGE PAN: But if you weren't, it would be no criminal prosecution, no criminal liability for that.

SAUER: Chief Justice's opinion and we're against Madison and our constitution and the plain language of the impeachment judgment clause all clearly pre-suppose that what the founders were concerned about was not

JUDGE PAN: I asked you a yes or yes or no question. Could a president who ordered Seal Team 6 to assassinate a political rival who was not impeached. Would he be subject to criminal prosecution?

SAUER: If he were impeached and convicted first.

JUDGE PAN: So, your answer your answer is no.

SAUER: My answer is a qualified yes.

(END VIDEO CLIP)

PEREZ: And you know that you could see where the former president's legal team is being pushed to see the limits -- of that immunity. The other thing that they're arguing today is that because he was impeached but acquitted by the Senate that he can't be prosecuted again. In essence a double jeopardy argument. Now on the Justice Department side, you know, one of the things that you hear them pushing back on is this idea that, you know, just because they're doing this prosecution that, you know, any president could be could be prosecuted for other things. And what the James Pierce, the prosecutor for on Jack Smith, the special counsel Jack Smith's team what he was arguing was, well, we haven't been here before because we've never had a president do these things. Listen.

(BEGIN VIDEO CLIP)

JAMES PEARCE, ASSISTANT SPECIAL COUNSEL U.S. DEPAERTMENT OF JUSTIC (voice-over): Never in our nation's history until this case has a president claimed that immunity from criminal prosecution extends beyond his time office. The president has a unique constitutional role, but he is not above the law.

(END VIDEO CLIP)

[14:05:09] PEREZ: And Brianna, the other argument they made right here is pushing back on this idea of immunity simply because, you know, he was acquitted by the Senate. The Senate, of course, the Senate, the impeachment proceedings are not a political proceeding, not a criminal proceeding, is what they argued.

KEILAR: Exactly. It was so interesting to hear Judge Pan there because she's really pointing out the absurdity in a way of what they're arguing. So, tell us a little bit about these three judges randomly selected.

PEREZ: Right. Absolutely. She was one of the most active in trying to draw out those hypotheticals. Judge Childs and Judge Pan are both Democratic nominees. They're appointees, both Obama and Biden appointees to this to this appeals court. Judge Karen Henderson is a Republican appointee. And one of the things she was doing was to sort of draw out this question of, you know, are we opening Pandora's box? She was trying to see what the limits of what the Trump argument was on this.

KEILAR: Yeah. Very key there. Evan, thank you so much for taking us through that. We do appreciate it. Boris.

SANCHEZ: Let's get some perspective now with CNN chief legal correspondent Paula Reid and national security attorney Bradley Moss. He's a partner at the law office of Mark Zaid. Paula let's start with you. The judges and the special counsel pointed out that Trump's legal argument today evolved. Is that a good sign?

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: Well, it can be a good idea to switch up your argument depending on what you're seeing in other courts. The judges that you're advocating before go with your strongest argument. But what happened here is they've backed themselves into an unusual place because here they're arguing that the former president does not enjoy absolute immunity, but instead that he can only be prosecuted if he is impeached and convicted in a political process. Now, the judges, they came armed with some pretty spicy hypotheticals, including this one about SEAL Team 6, where they got to a place where they're effectively saying, yeah, the president can assassinate a political rival as long as Congress is cool with it. I mean, that isn't really a winning legal argument.

So, yes, they have changed up what they're arguing and where they ended up in this oral argument didn't seem to be a strong place. But even former members of Trump's legal team, most experts agree he is unlikely to win the day on this immunity issue.

KEILAR: Yeah, Bradley, they did sound pretty skeptical here as you listened to them. What did you think?

BRADLEY MOSS, NATIONAL SECURITY ATTORNEY: Yeah, it was interesting to hear that SEAL Team 6 argument because we've been hearing that come across in various networks of what is the, you know, the extent of what this immunity would play out. Imagine that are, you know, all the Trump, you know, legal pundits, all the Trump friendly political officials out there. Are you ready to give Joe Biden that kind of power right now? He could just say, forget it. Calling off the election.

There's been too much fraud. You know, the entire Republican Party is a national security threat. I'm imprisoning and executing every Republican official. And so long as there's no one to impeach and convict them, he's immune from prosecution. Are you ready to give the incumbent president that kind of immunity from accountability? It was a ludicrous legal theory. It's going to fail at least at the D.C. Circuit.

SANCHEZ: Really fascinating. Bradley, though, to Paula's point a moment ago, they are also arguing that Trump shouldn't face prosecution because it would amount to double jeopardy. But that seems to be a contradiction because they're saying that if he was if he carried out some sanctioned assassination via SEAL Team six, then it would be Congress that must prosecute him and then a criminal court. But they're also arguing that he can't be tried in criminal court because Congress already didn't convict him. They acquitted him during his impeachment. How does that make sense?

MOSS: It doesn't. It doesn't at all. And part of this got brought up. As to what some different Trump lawyers during that second impeachment had argued, saying you can't even convict him here before the Senate. There's no jurisdiction. He's no longer president. This has to be thrown out. But, of course, there's always criminal processes that could be used against him post presidency.

This has all been about just trying to survive the moment with these different sets of legal teams. Each time Trump gets into trouble, they're never thinking about the next problem. And they're stuck here with the idea of basically if, in fact, the impeachment judgment clause does not argue what they say it does, which is that Congress has to convict him first, then their entire rest of their immunity argument falls apart and everything else they've said means nothing.

KEILAR: Other examples looking at past presidential action. Let's listen to this.

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SAUER (voice-over): To authorize the prosecution of a president for his official acts would open a Pandora's box from which this nation may never recover. Could George W. Bush be prosecuted for obstruction of an official proceeding for allegedly giving false information to Congress to induce the nation to go to war in Iraq under false pretenses?

[14:10:09]

Could President Obama be potentially charged with murder for allegedly authorizing drone strikes targeting U.S. citizens located abroad?

(END VIDEO CLIP)

KEILAR: Paula, apples to apples here, apples to car mufflers. I don't know. REID: Look, this is an issue that has to be disposed of, right? What

are the limits here? The thing that I think most lawyers would see with that list is these are things that were clearly done in that president's official duties and their official capacity. These are the kinds of decisions that immunity and protections were designed to insulate presidents from future prosecution. The difference here is we're talking about allegations about subverting an election.

That, the special counsel would argue, and most legal experts, that's not part of your official job as president. And that is the difference. That is why this doesn't open a Pandora's box. In fact, one of the special counsel's lawyers specifically said this. They said, look, this isn't going to create a tit-for-tat vindictive streak of prosecutions against political rivals because the reason charges were brought here is because this was unprecedented conduct. The allegation that he was trying to subvert an election. He said that is unprecedented and why there are charges here, but they're not worried about charges being brought for everything. And I think the easiest way to see it is what is part of your official job as president and what is outside that? And the special counsel argues that what Trump is accused of doing was far outside his official duty.

SANCHEZ: Paul Reid, Bradley Moss, thanks so much for the conversation.

MOSS: Thanks so much.

SANCHEZ: Of course. So, the last time that presidential immunity was under the microscope like this was during the Nixon era. President Nixon famously summed up his stance saying, quote, when the president does it, that means it's not illegal. Trump's argument is similar. If the president does it, then it's an official act to Paul's point.

KEILAR: That's right. Yeah. His lawyer is arguing that it's this blanket. it, covering anything from firing off a tweet to, say, calling up a state official to get them to, yes, change their election results. So, let's zoom in here on these parallels with CNN's Brian Todd. Brian, is this a case of history repeating itself?

BRIAN TODD, CNN CORRESPONDENT: Well, Brianna and Boris, the answer is kind of yes and no. There are parallels, of course, but there are differences. The parallels are that both are presidents who tried to invoke immunity for actions that they took while they were in the White House, but these were different types of immunity that they tried to invoke. In 1974, Richard Nixon tried to invoke what's known as limited presidential immunity over judicial orders when he tried to avoid handing over his secret White House tapes to the special counsel investigating the Watergate scandal.

But even then, the Supreme Court swept his arguments aside and said that he had to hand over the tapes. He did hand over the tapes, and soon after that, he was implicated in the Watergate cover-up and he had to resign. But it's important to point out that Richard Nixon did not try to invoke immunity over being criminally prosecuted. He was doing it over judicial orders. It was a very limited immunity, and that's according to legal experts and historians who we spoke to on this issue. Now, Boris referenced Nixon's comment. That was three years after he left the presidency in 1977 when Richard Nixon did those iconic interviews with British journalist David Frost when he seemed to imply that he was above the law at that time. Here's a clip of an exchange between Nixon and Frost in 1977.

(BEGIN VIDEO CLIP)

DAVID FROST, FORMER BRITISH JOURNALIST: In a sense, you're saying is that there are certain situations, and the Houston plan or that part of it was one of them, where the president can decide that it's in the best interest of the nation or something and do something illegal.

RICHARD NIXON, FORMER UNITED STATES PRESIDNET: Well, when the president does it, that means that it is not illegal.

(END VIDEO CLIP)

TODD: I spoke to our historian, CNN's historian Tim Naftali, who used to run the Nixon Library, about that comment from Richard Nixon to David Frost in 1977. And Tim Naftali points out something very important here. He said that Nixon at the time was referring to just a narrow band of national security and domestic security operations, which for a period of time in the United States could be done by a president and not be illegal.

But Naftali points out that later on after that, the courts and Congress swept away that type of immunity. And also, he points out that Nixon was not referring to absolute immunity. Again, he was referring to the type of immunity that was in the United States. He was referring to immunity on judicial orders there when he tried to invoke that immunity in the first place. So, these are two kind of different types of immunity, guys, but they both were invoked by presidents who were trying to basically, you know, use that to not be prosecuted in certain cases.

SANCHEZ: A really fascinating look at history. The context, of course, as you laid it out, critical. Brian Todd, thanks so much.

TODD: Thanks, guys.

SANCHEZ: Of course. Still ahead, we're going to take you live to the Pentagon, because in just a few minutes, we're going to get the first briefing. Since we learned that Defense Secretary Lloyd Austin had a secret hospital stay that he didn't tell the White House about.

[14:15:09]

We may get an update on his condition as well. Plus, we're less than a week out until the official start of the primary season. A new poll suggesting the race in one state is getting tighter, much tighter.

KEILAR: And Donald Trump trash talks the economy with talk of a economic crash. He's predicting doom, hoping as well that it comes before he might be re-elected, he said. Is there any basis, though, for this projection? We're going to fact check him on this one ahead on CNN News Central. (COMMERCIAL BREAK)

KEILAR: New CNN polling showing Donald Trump's rock solid lead in the Granite State might be cracking. He's still beating Nikki Haley in New Hampshire. but she's made up a lot of ground there.

SANCHEZ: Yeah, and she's become the first Republican rival to Trump to get within striking distance. Let's bring in CNN's Harry Enten. Harry, break down these new polling numbers.

HARRY ENTEN, CNN SENIOR DATA REPORTER: I'm going to try and do as good of a job as you did last hour, Boris, with this. Let's see what I can do. Okay, so if we look in the state of New Hampshire, what do we see? Our latest poll showing a seven-point race. A seven-point race. My goodness gracious. Trump at 39 percent. Haley at 32 percent.

[14:20:00]

Look at Ron DeSantis, just down at five percent. I will note that 32 percent for Haley is the best of any candidate not named Donald Trump, not just in New Hampshire, but anywhere in this country since all the way back in June. Now, the trend line, though, is what is so key here. And what do we see in the trend line? We see that Nikki Haley is gaining massive momentum in the Granite State. If you look back at our last poll in November, what you saw was that Nikki Haley, get this, was 22 points behind Donald Trump. Now she's just seven points behind Donald Trump.

And as I mentioned, Ron DeSantis falling through the floor, now just not in third place, not just in fourth place, but in fifth place. And Chris Christie, who, of course, has bet his entire campaign on New Hampshire, is in a distant third place at this point.

KEILAR: So, tell us, Harry, what group is Haley doing best with? And do you think that this is momentum that she could continue?

ENTEN: All right. There are two questions in there. I'm going to hit both of them. All right. So, the first question, who is she doing well with? Well, if you know anything about New Hampshire, if you know anything about northern New England politics, you know that moderates play a key role up there. And what do we see? We see Nikki Haley crushing with moderates. Look at that, getting 55 percent of the vote. Chris Christie in a distance, second place at just 26 percent among conservatives, who, of course, make up the bulk of Republican voters nationwide. She is in a distant second place, 40 points behind Donald Trump.

But the fact is, moderates make up a much larger share of the New Hampshire electorate than they do nationally or in Iowa, where, of course, Nikki Haley is also struggling. Now, here's the question. Could she, in fact, continue to close that gap? I want to give you an idea of why I think that she could. If you ask these voters, the supporters of these voters, are they definitely decided? What do we see?

We see Donald Trump's voters are very much in his camp. Look, 80 percent of them said they've definitely decided on their vote. Now, Nikki Haley has weaker support at 54 percent. So, you might say, OK, Haley could fall down as well. That's true. But you could also pick up support from the other candidates. Look at that. 45 percent of voters who say they're supporting someone not named Donald Trump or Nikki Haley say they're definitely decided on their vote.

So, there is that chunk of voters. And I'm specifically looking at the Chris Christie supporters. Who at this particular point are overwhelmingly saying that Nikki Haley is their second choice. They could flow over to Nikki Haley. So, at this point, it's a seven-point margin, but it's closing. And it wouldn't shock me, Boris and Brianna, if that gap closes even further. But we'll just have to wait and see. Lots of time still to go.

SANCHEZ: Yeah, a lot to watch out for. Harry, you're such a flatterer. There's no way that what I did on the magic wall compares to how you just breeze through that. Sadly, he is a Buffalo Bills fan. We don't like that here on News Central.

KEILAR: I'm all right with it, Harry. I mean, --

BORIS: What a betrayal.

KEILAR: I mean, I'm just kidding. I'm just I have to listen, Harry. I have to sit by Boris every day. So, I'm I'm just going to have to fair weather friend that.

ENTEN: You know what? I'll make a trip down to Washington, D.C. Maybe I'll sit between you two and Boris. I'm so sorry that the Buffalo Bills are so superior to the Miami Dolphins.

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SANCHEZ: Harry Enten, it's been a great time having you on News Central. We're going to move on.

KEILAR: He's going to cut your mic, Harry. Bye now. So former President Trump has a doomsday prediction for the economy. And he says when the worst happens, he just hopes it'll be on Biden's watch. We have an economy that's so fragile. When there's a crash, I hope it's going to be during this next 12 months because I don't want to be Herbert Hoover, the one president. I just don't want to be Herbert Hoover.

SANCHEZ: Let's bring in CNN's Vanessa Yurkevich to fact check what Trump is saying about a certain crash. Walk us through, Vanessa, what a crash is, why Trump --. Actually, we're going to stop right there because of the commander of the Pentagon, Secretary of Defense Lloyd Austin's condition. Oren Liebermann is there for us. Some big news coming out of the Pentagon, Oren.

OREN LIEBERMANN, CNN PENTAGON CORRESPONDENT: Absolutely. Walter Reed National Military Medical Center, where Defense Secretary Lloyd Austin has just been for the course of the past eight days, has just put out a statement saying that Defense Secretary Lloyd Austin was diagnosed with prostate cancer last month. That's why he went to the hospital on December 22nd. And it is from discomfort from that hospitalization December 22nd, an overnight stay, that he was then readmitted to the hospital on New Year's Day, and that's where he's been since New Year's Day.

So, this is quite a lengthy statement that we just got from Walter Reed Medical Center. I'll read you parts of it. This answers a key question that we didn't know the answer to until this point, which is, why was Austin in the hospital to begin with? So I'll read part of this here. There was a positive identification of prostate cancer earlier in the month. He went in on December 22nd, just a couple of weeks ago, for a minimally invasive surgical procedure called a prostatectomy or prostatectomy to treat and cure prostate cancer. He was under general anesthesia during that procedure.

[14:25:19]

He was then released the following morning, so this is December 23rd. He recovered uneventfully from his surgery and returned home the next morning, according to the statement. The cancer itself was detected early, and his prognosis is good. But a week later or so, on January 1st, the hospital says he was experiencing nausea with severe abdominal hip and leg pain. The initial evaluation revealed he had a urinary tract infection, and on January 2nd, the decision was made to transfer him to the ICU for close monitoring and a higher level of care.

Further evaluation revealed abdominal fluid collections impairing the function of his small intestines. This resulted in the backup of his intestinal contents, which was treated by placing a tube to drain his stomach. This goes on with quite a bit of detail here. Crucially, this answer is one of the main questions we had had, something the Pentagon had not been able to answer until we got this statement just a few moments ago, which is crucially, why was Austin in the hospital in the first place?

We now know that answer. He was diagnosed with prostate cancer, and as this statement says, his diagnosis was early and his prognosis is good. They then give a lot of information here about the discomfort that has kept him in the hospital since January 1st. So, this answer is obviously a key question that we had had, which is, why was Austin in the hospital in the first place? Crucially, it does not answer the question of why was there a failure to notify President Joe Biden for days, National Security Advisor Jake Sullivan, and so many others in the Pentagon. That remains a question, and I suspect that will be a focus of the press briefing here from Pentagon Press Secretary Major General Pat Ryder in a short time. The Pentagon did announce last night there's a 30-day review to look at the policies and procedures around notifications to make sure, or try to make sure, this doesn't happen again.

KEILAR: All right. Oren, we are right now awaiting a press conference there at the Pentagon, where certainly more questions will be asked about this, as we have learned that Lloyd Austin was treated for prostate cancer on December 22nd, but that why he ended up in the hospital after that was because what was initially revealed to be a UTI, but then an intestinal blockage or a, quote, backup, as it is put here in a full statement from his doctor at Walter Reed Medical Center.

We're going to get some information. Some input here from a doctor who can speak to us a little bit more about this as we await this key Pentagon briefing. After a quick break, we'll be right back.

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