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Any Moment, Supreme Court Releases Opinion; Now, Judge Hears Arguments to Dismiss Classified Documents Case; Six Days Until CNN Trump-Biden Debate. Aired 10-10:30a ET

Aired June 21, 2024 - 10:00   ET

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

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[10:00:00]

JIM ACOSTA, CNN ANCHOR: Good morning. You're live in the CNN Newsroom. I'm Jim Acosta in Washington.

We do start with breaking news at any moment. The Supreme Court is expected to hand down more opinions. With just one week left in its term, the court still has to release a number of decisions that could send shockwaves through American society. In addition to a bombshell presidential immunity case, the justices have yet to rule on the prosecution of January 6th defendants, a key emergency abortion rights case and gun rights for domestic abusers.

But less than a week before CNN's highly anticipated presidential debate, the question of whether Donald Trump is above the law looms largest of all, as the former president relentlessly demands total immunity out on the campaign trail.

(BEGIN VIDEO CLIP)

DONALD TRUMP (R), FORMER U.S. PRESIDENT, 2024 PRESIDENTIAL CANDIDATE: You have to have guaranteed immunity for a president. Otherwise a president is not going to be able to function. They're not going to move -- Harry Truman would not have done -- Harry Truman would not have done Hiroshima, Nagasaki.

(END VIDEO CLIP)

ACOSTA: Despite Trump's baseless accusations of a two-tier justice system that seems to be working well in his favor right now, Judge Aileen Cannon is entertaining his claim that a special counsel investigation is unlawful and the Supreme Court has taken its time weighing Trump's immunity claim for nearly two months, potentially delaying the January 6th case until after the election.

Let's discuss now with Yale Law and Political Science Professor Akhil Reed Amar. He clerked for Supreme Court Justice Stephen Breyer and is the author of The Words That Made Us, America's Constitutional Conversation, also with me, Deborah Pearlstein, professor of constitutional law at Princeton. She clerked for Supreme Court Justice John Paul Stevens. Deborah, let me start with you first. Thanks to both of you for being on with us. The court took less than three weeks to decide U.S. vs. Nixon, which clarified the extent of executive privilege during the Watergate scandal. Obviously, this is a different case, but why is it taking so long, do you think?

DEBORAH PEARLSTEIN, CONSTITUTIONAL LAW PROFESSOR, PRINCETON UNIVERSITY: It's a great question, and there's no clear answer to that question. The court put the case on a slightly accelerated briefing schedule and argument schedule. What it has done, the court has done and can do in past cases is issue some sort of interim ruling saying, you know, the answer is X. There is no absolute immunity here and then issue a longer opinion later to allow proceedings to go forward.

Often when the court takes a long time to issue an opinion, it's because there are multiple opinions being drafted. There's a dissent being written, the opinions are going back and forth. All the justices have an opportunity to comment on them. If I had to guess, that's what my guess would be is going on here, but given the stakes of the case and obviously the approach of the election, they could have done it faster and I think it would've been better for the court and for the country if they had.

ACOSTA: Yes. Akhil, I mean, do these kinds of practical, real world aspects of all of this, do they dawn on the justices of the court, maybe dawns on some, but not others? I mean, what do you think? Do they recognize that the, the longer they wait, the more of a mess potentially they could make politically for the country, if, you know, we don't see a January 6th case go to trial before the November election, for example?

AKHIL REED AMAR, CLERKED FOR SUPREME COURT JUSTICE STEVEN BREYER: In fairness to them, and it's an honor to be with you again, Jim and Deborah, if I may, with you as well they got the case pretty late. And the January 6th and election interference issues arose almost four years ago, and it's taken a long time for some of these issues to percolate up. And so it would have been nicer, truthfully, had these issues been teed up for their consideration a year ago or eight months ago, or they only granted the review a couple of months ago. It was the last oral argument end of April.

[10:05:00]

And I agree with Deborah that we should expect multiple opinions. There, I think, will be probably concurrences or dissents. And if they're not, even if it's a unanimous opinion, presumably from the chief justice, like Warren Burger in the Nixon tapes case, that would still likely be the product of all sorts of complex conversation and negotiation among justices who began perhaps with slightly different perspectives, and it's not easy to herd cats.

ACOSTA: Not easy at all. And Deborah, I mean, the court is already embroiled in controversy and confidence in the court is at an historic low. You know, I think back to the Dobbs decision, we're almost at the second anniversary of the Dobbs decision, but what would a ruling favorable to Trump mean for public trust in the justice system? I suppose it would continue to show a lot of polarization in the polling.

PEARLSTEIN: So I think part of me wants to say it depends what the ruling is that's favorable to Trump. It depends how the decision is written. It's almost inconceivable to imagine to me that this court would conclude the president has absolute immunity, even this incredibly conservative court. There is nothing in the history of the country or indeed any of the court's prior decisions that would support a ruling of that sort of staggering breadth. So, I expect we'll see a more complicated decision given the amount of time it's taken.

In terms of the court's overall sort of approval rating, you're certainly right. It's at a historic low. It began dropping even before Dobbs, and it's a complicated question why that is. Part of it might be the unpopularity of some of its rulings, certainly Dobbs itself, but another part of it is the sort of atmosphere surrounding the court, the growing number of ethics controversies surrounding some of the justices, the enormously contentious domination and confirmation processes, the politics surrounding the confirmation processes of the justices, the justices' own statements during those confirmation processes held up against their behavior once on the court. There's a lot going on and a lot for the public to pay attention to. Dobbs is absolutely part of it, but it's not the only issue at this point.

ACOSTA: Yes. Akhil, I mean, there's another case to the courts. January 6th defendants case could also impact Trump's legal challenges. How significant will that ruling be?

AMAR: Well, there're so many different fact patterns involving immunity for ex-presidents. Trump talks about, well, what about prosecuting Harry Truman for Hiroshima and Nagasaki, you know, after office, and that's different from staging or cooperating in an insurrection to overturn a valid electoral result, and that might be different still from all sorts of other criminal cases, we could imagine. These are part of the complexities, it seems to me, that may explain some of the delay, even if, of course, the president isn't categorically immune.

And I agree with my friend Deborah that that would be a shocking ruling that there was some absolute immunity. There are going to be complicated questions about how to construe certain statutes and should they apply to the president in exactly the same way that they apply to someone else? If you or I tried to interfere with the prosecution, that might be obstruction of justice. If a president did, well, he does have the pardon power and he is the head of the executive branch. And so he may have certain lawful powers you see that you or I or Deborah don't have.

So, those are some of the complexities that they're going to have to be wrestling with. My own view is you don't need any kind of blanket immunity idea, but you will need as applied a special understanding about how various criminal laws, state and federal, apply or don't apply to former presidents. ACOSTA: All right. Well, we're going to be watching these opinions as they're coming down. And I suspect we're going to be watching them again next week and waiting for some big ones to come in. Akhil and Deborah, thank you very much for your time. I really appreciate the expertise and having you on this morning. Thanks so much.

PEARLSTEIN: Thank you.

ACOSTA: All right. And right now in Florida, Trump's attorneys are back in federal court in the latest attempt to derail his classified documents case. The former president is arguing that Jack Smith, the special counsel, was unlawfully appointed. Smith has brought charges against Trump in both Florida and Washington, D.C.

CNN Senior Justice Correspondent Evan Perez joins us now. Evan, what can you tell us? How strong is this argument? Do we think it's going to fly?

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: What's the latest on this? Well, Jim, it normally wouldn't even get this far. In the past, defendants have brought up claims like this and judges either have them handled over briefs and dismissed them.

[10:10:04]

Hunter Biden, for instance, raised similar objections to two different judges, to judges in California and in Delaware over the appointment of Special Counsel David Weiss. And those both were dismissed immediately. And so the fact that we're having a hearing in the first place here in Fort Pierce is unusual, but that's what we're doing.

The hearing just got underway at the federal courthouse here in Fort Pierce and Judge Aileen Cannon is going further than just doing this hearing. She's also entertaining the arguments for from a couple of outside groups, groups that have nothing to do with this case, including a right-leaning conservative legal group, and so a group on the left that is in support of Jack Smith's position.

The argument here is that Jack Smith was unlawfully appointed as special counsel, that Merrick Garland, the attorney general, exceeded his authority, because Jack Smith is not someone who is confirmed by the Senate.

Now, it is something that other defendants have brought up before. The Supreme Court has upheld the appointments of special counsels in the past. So, we'll see how far along these arguments go before Judge Cannon today. It's one of three hearings we have in the next few days, Jim, including one on a gag order that has been requested by the special counsel. That is on Monday, as well as an effort by the former president to toss evidence that he says was unlawfully taken from Mar- a-Lago in the search in 2022.

And, Evan, I want to ask you about this new New York Times reporting that Judge Aileen Cannon rejected suggestions from two other judges that she step aside from this case. You know, critics have been saying she's in over her head. Does that put more scrutiny on all of her rulings? And I suppose does it raise the possibility that at some point she may be removed from this case?

PEREZ: It's very, very hard, Jim, to remove a judge from the case from a case like this, unless there's some kind of misconduct, unless there is some evidence of a conflict. And so far, the special counsel has not even broached this idea. But as you pointed out, The New York Times is reporting that a number of judges, a couple of judges, including the senior judge in the district in Miami, this is district that's headquartered in Miami, had pushed for her to consider removing herself from the case. She has declined to do so.

And one of the things that has really drawn the attention of everyone is the fact that this case has moved so slowly. She has not rendered decisions. There's about eight or nine important rulings that she has not made. And we'll see whether that eats up the calendar any more than it already has, Jim.

ACOSTA: Evan Perez, thank you very much. Please let us know if anything develops there where you are in Florida.

Joining us now, CNN Senior Legal Analyst and former Federal Prosecutor Elie Honig. Elie, you know, this is pretty unusual stuff to hear arguments to dismiss a prosecutor. Meanwhile, at the same time, there's this cloud over Judge Cannon, I mean, with these questions that have been raised.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: So let me explain the argument that Donald Trump's team is making. I think they'll be unsuccessful. They are arguing that when you have a special counsel like Jack Smith, that person is given essentially the same powers that normally a U.S. attorney or the United States attorney general holds to investigate, to subpoena, indict, try a case. And the argument is, well, U.S. attorneys in the A.G. have to be presidentially nominated, Senate confirmed, the special counsel is just pointed to by the A.G., therefore it's invalid. The same argument was made to try to remove Robert Mueller unsuccessfully. The same argument was made to try to remove David Weiss, the special counsel in the Hunter Biden case, by Hunter Biden's lawyers, unsuccessfully.

So, Judge Cannon is giving this hearing -- this issue a bit more of a hearing, a lot more of a hearing than it's usually gotten. I think if she does say that Jack Smith is improperly appointed, she'll be reversed. I think it's clear that special counsel is lawful.

ACOSTA: Yes. And are you a little shocked to see this New York Times reporting that fellow judges, even senior judges in her jurisdiction have been saying, hey, you know, maybe you should step aside here, maybe this is not, you know, where you should be right now?

HONIG: I'm surprised on a couple levels. First of all, I mean, judges do talk like any other colleagues at work about what do you think of this, what should I do here? It would probably be a smart idea for Judge Cannon to talk to some more experienced judges. More junior judges do this all the time. Hey, what do you make of this issue? But for multiple more senior judges to say you may be in over your head here is really unusual. But I should say, if she were to step away for that reason, she's not going to. That would be completely unprecedented. I mean, I've never heard of a federal judge saying, I'm removing myself, not because of a conflict of interest, but because I'm not up to it. That would be a very strange result.

ACOSTA: And the complicating factor in all of this is that, you know, let's say she rules in a way that Jack Smith doesn't like, goes to the court of appeals, and in some doomsday scenario, the court of appeals pulls Judge Cannon off the case, that effectively also delays the case because a new judge would have to come in.

[10:15:03]

In this scenario, it makes it very difficult for this classified documents case to get to trial before the election.

HONIG: Yes, I think the chances of that are close to zero. Now, important to note, it's very rare to see a judge forcefully removed from a case. It does happen occasionally. The first thing that would typically have to happen, though, is Jack Smith, the prosecutor, would have to ask for it. And prosecutors are very wary of doing that. One, because you don't want to look like you're judge shopping, too, because it's kind of dicey if you say, court of appeals, I'd like you to remove Judge Acosta, and the court of appeals says no, and then you got to go back in front of Judge Acosta, hypothetically.

ACOSTA: Yes.

HONIG: So, Jack Smith has not made --

ACOSTA: I don't see that happening.

HONIG: Yes. Well, you would be a different -- not having a law degree, I think, would be a problem. But Jack Smith has not made that move yet. But I do think if Judge Cannon rules that he's improperly appointed, that would be a shocking ruling and might give him a basis to ask, A, to reverse her and, B, to remove her.

ACOSTA: And since we're waiting these major decisions to come down from the Supreme Court, just to go back to that for a moment, we were talking with our two legal scholars earlier about just how long it's taking for this immunity case to come down.

HONIG: Yes.

ACOSTA: I mean you know, again, I mean, getting back to this question of, you know, Trump raises out on the campaign trail, that the justice system has been weaponized against him and so on, kind of working to his favor right now.

HONIG: Yes, he's definitely had some wins. Just to update people, the Supreme Court has issued three opinions so far. None of them are the big ones relating to abortion or guns or immunity. So, we're still -- we're wearing out the refresh button as we speak, and if a big one drops. I mean, it is typical to get the big rulings in June and occasionally into July. So, it's not unusual in that respect. And as Professor Reed pointed out, this was the immunity case was the last one argued. But, look, I think Donald Trump's in line. I don't think he's going to win ultimately on immunity. I don't think the Supreme Court is going to say you are immune, case dismissed. But he could well win if they say, and I think this could happen, there's a new test for presidential immunity, here's what it is, trial court, now you figure it out because that will have the effect of delay.

ACOSTA: And can you imagine if this comes down on the day of the debate next week? Will all of our heads explode?

HONIG: You asked a great question of the earlier panel, do the justices know about this? Of course, they know it's happening. Listen, the justices watch us, they read the papers, they're aware of the real world.

ACOSTA: All right, very good. Elie, thanks so much. We'll be right back.

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[10:20:00]

ACOSTA: We are just six days away from the most anticipated moment of this historic election season when President Biden and former President Donald Trump go head to head in the first 2024 presidential debate. It will all go down here at CNN's Atlanta campus in the all important state of Georgia that was key to Joe Biden's victory in 2020. It's also the state where Trump is facing racketeering charges in that state's election subversion case. And the stakes could not be higher, the latest polling shows no clear leader in the bitter duel for the White House, a little bit of an uptick for Joe Biden.

But joining me now to talk about this, CNN Political Commentator and former Biden White House Communications Director Kate Bedingfield, and the deputy communications director for Trump's 2016 campaign, Bryan Lanza.

Kate, let me talk to you first. I was, you know, talking to Van Jones yesterday about this upcoming debate, and he said it's a make-or-break moment for the president. Let's listen, talk about it on the other side.

(BEGIN VIDEO CLIP)

VAN JONES, CNN POLITICAL COMMENTATOR: This, this, this is the entire election, as far as I'm concerned, the entire world will be watching.

If Biden goes out there and messes up, it's game over.

(END VIDEO CLIP)

ACOSTA: Van never disappoints.

KATE BEDINGFIELD, CNN POLITICAL COMMENTATOR: Okay. Well, I would argue if Donald Trump goes out there and messes up, it's game over.

ACOSTA: Really?

BEDINGFIELD: Yes, absolutely. Donald Trump has a case to make with swing voters. He has a lot of work to do to persuade the moderate, suburban voters who are ultimately going to decide this election. And this is going to be a huge platform. There are going to be a lot of people watching. This is going to be probably the first time in this race that people are really dialed in, that they're really looking at the hard contrast between Biden and Trump.

So, I think there's a huge amount of opportunity for Joe Biden on debate night to really drive at Trump's vulnerabilities on abortion, on democracy. And this is going to be a big moment for both of them, no question. But I don't think the stakes are higher for Joe Biden than they are for Donald Trump. I think they're very high for both of them.

ACOSTA: Yes. And, Bryan, I mean, after months of Trump being out on the campaign trail, attacking Joe Biden, you know, accusing him of wandering around and not having all of his faculties and so on, Trump is now raising debate expectations for Joe Biden. Let's listen to what he said about this.

(BEGIN VIDEO CLIP)

TRUMP: I was never a fan of his, but I will say he beat Paul Ryan. It was still years ago, but he beat Paul Ryan pretty badly. And I assume he's going to be somebody that will be a worthy debater. Yes, I would say, I think I don't want to underestimate him.

(END VIDEO CLIP)

ACOSTA: Bryan, did somebody whisper in Trump's ear and say, you know, you might want to stop lowering expectations so much?

BRYAN LANZA, DEPUTY COMMUNICATIONS DIRECTOR, TRUMP 2016 CAMPAIGN: Listen, I think President Trump wanted to focus not to be on Biden's facilities, but on his record, right? You know, the economic record is a failed record that he wants to highlight. The immigration record is a failed record that he's going to highlight. And so rather than, you know, let's set the bar on his mental capacity, let's set the bar on analyzing his record.

He's been president for three and a half years. He made commitments to his coalitions. He made promises. So, I think the tough burdens not necessarily for President Trump, it's for President Biden. He created this coalition that one last time. That coalition is fraying not as a result of any of Trump's activities, but it's a result of Biden's failures economically.

So, I think we're going to see Biden try to defend his record, his economic record, specifically inflation. As Donald Trump says, hey, we didn't have these same issues. You have them. You've had three and a half years to address them. You have nearly 36 months to touch inflation and you haven't even come close to hitting your own target. That's what this debate is going to be about.

BEDINGFIELD: Well, you say he doesn't want to set the bar on, on Biden's capabilities, but he spends all of his time on the campaign trail, where they're talking about his own grievances, the way he's been wronged or the fact that he believes that Joe Biden is senile.

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ACOSTA: Guys, I hate to do this, and I knew this was going to happen as soon as we got going. We do have a major Supreme Court decision to talk about.

Let's go to Paula Reid now.

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: Yes, Jim, this is one of the biggest cases they've been watching this term. It deals with gun rights. And here, the Supreme Court has upheld a law that bars domestic violence offenders from owning firearms. Now, a couple years ago, the Supreme Court really broadened the definition of the Second Amendment and now they've been fielding additional questions about exactly how far the Second Amendment extends.

But here they have upheld a law that bar someone. In this case, it was a man who was indicted on domestic violence charges. He had a protective order against him. And this case dealt with whether it was constitutional to bar him from owning a firearm.

And here, the Supreme Court has upheld that law banning domestic abusers from owning guns. This is a major Second Amendment ruling from the high court in really one of the biggest cases that we've been watching this term.

ACOSTA: Yes. Paula, I mean, this is a major decision for gun control advocates, correct?

REID: Absolutely. It's a big win for gun control advocates. It seemed to be leaning that way during oral arguments. If you listen to the questions, if you listen to some of the skepticism that some of the justices had, that this is a significant win for them. And, again, like I said, two years ago, the Supreme Court really broadened the definition of the Second Amendment. Now, they've been fielding additional questions about who can and cannot potentially own a firearm. So, here, a big win for those seeking to restrict, in some cases, the right to own a firearm.

And Elie Honig is with me. Elie, I do want to ask you very quickly, I mean, we shouldn't just say gun control advocates, I mean, victims of domestic abuse have been watching this case very closely. Because, I mean, the idea that, you know, people who are abusing their spouses or loved ones or what have you, having the ability to own guns and the government not being able to stop that from taking place. I mean, this was obviously a significant case.

HONIG: It's a really important decision. It's a rarity. It's actually a narrow reading of the Second Amendment. The decision, by the way, I should say, is written by Chief Justice Roberts. It's an eight to one decision. There's a couple of what we call concurrences, meaning justices who agree for different reasons, and there's one dissent from Justice Thomas.

But you see an eight to one decision here that says it is okay, federal criminal law can say that a domestic violence abuser can be denied a firearm. You can keep guns out of the hands of people who are subject to domestic violence restraining order. So, this one was, legitimately, you couldn't tell which way it was going to go. They've taken a narrow view of the Second Amendment, and they've upheld this restriction on firearms.

ACOSTA: That's fascinating. And Deborah and Akhil are legal scholars, constitutional scholars are back with us as well. Akhil, let me go to you first. I mean, was this a surprise to you based on the oral arguments? What do you think?

AMAR: So, great to be back. Yesterday, I very foolishly perhaps made the prediction on your show at 10:00 A.M. and I said, I thought Rahimi was probably going to come down, holding the government's position, reading the Second Amendment more narrowly. I predicted it would be an opinion most likely by the chief justice. I said that I thought my friend, Clarence Thomas, would be in dissent and that there might be daylight between Thomas on the one hand and Justice Barrett, for example, on the other, because I was asked a question about that. And it was silly for me to make that prediction, but it turns out that's what happened today.

ACOSTA: Not so silly.

AMAR: Just to remind your audience of the significance of this, as Elie just said, this is the first major opinion in the modern era that is reading the 2nd amendment narrowly and ruling against it. The three big cases in the modern era before this where a case called Heller, in which Justice Scalia read the Second Amendment broadly over a dissent by Justice Stevens, for whom Deborah clerked, and then a second case, and my judge, Stephen Breyer, a second case called McDonald, where per Justice Alito, again, a broad reading of the Second Amendment, and a third one just recently, a case called Bruen, where Thomas wrote for the court, and now he's in dissent.

This is the first, so three big wins for the Second Amendment. This is the first time it's being construed more narrowly. And so now actually it's a ballgame.

ACOSTA: Yes. Deborah. I mean, can you pick up on what Akhil was saying there, because, you know, obviously there has been a broad interpretation of the Second Amendment coming from the high court in recent years, but, my goodness, having a law that bans domestic abusers from owning guns, that sounds like a common sense to a lot of Americans out there. And if the Supreme Court had gone the other way, I just can't imagine what the outcry would have been. That would have been something else.

PEARLSTEIN: Yes, so it sounds like -- and I'm sort of reading the opinion here as it's coming down, we've got 103 pages to sort through. But it sounds like it was roughly -- (COMMERCIAL BREAK)

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