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Biden and Trump Presidential Debate; How History Ranks Biden and Trump 2024 CNN Debate; Biden Advisers Frustrated About Defensive Debate; Supreme Court Limits Obstruction Charges in January 6 Case. Aired 10:30-11a ET

Aired June 28, 2024 - 10:30   ET

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

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JIM ACOSTA, CNN ANCHOR: Today, the Biden team is doing damage control after the president's debate performance. A CNN flash poll found 67 percent of debate watchers think Donald Trump won last night's showdown in Atlanta and a shocking 57 percent say they have no real confidence in Biden's ability to lead the country.

Joining me now is Larry Sabato. He's the director of the Center for Politics at the University of Virginia. Larry, always great to talk to you. What was going through your mind when you watched the debate? Have you had a chance to process it? What do you think?

LARRY SABATO, CENTER FOR POLITICS DIRECTOR, UNIVERSITY OF VIRGINIA: I have had a chance to process that. As you know, Jim, I've watched every single debate live, actually, from the four Nixon-Kennedy debates in 1960 to the present. And it gives me no joy to say this, but President Biden's performance was the worst by a major party nominee for president in that entire time period.

Now, having said that, I'd add a proviso to your poll there. Donald Trump did not win that debate. Joe Biden lost it. Donald Trump lied his way through it. Your own fact-checker has documented that as other fact-checkers have. So, you have to balance these things. And obviously, the Biden team has a lot of repair work to do. It's not just the Democrats who are privately calling for a replacement on Biden. I think he has lost the confidence of a lot of just rank and file citizens who watched the whole thing or part of it. It was disturbing.

ACOSTA: Yes. And, Larry, I do want to ask you this because I was just talking to a Trump surrogate a few moments ago, and they seemed petrified of the idea of somebody replacing Joe Biden on the ticket. Could the Democratic Party -- you know this all too well, could the Democratic Party feasibly replace Joe Biden as the nominee before the convention in August? Could they do it at the convention? How might that work?

SABATO: I do know the rules and I can tell you, unless Joe Biden decides himself to step down, to relinquish the nomination ahead of the convention, there is no feasible way to replace him. None. So, people can get that out of their heads. If they're going to try and convince him to step down, it has to be in advance of the convention.

And then, it is possible to have what we used to have, even in 1960 fits this model, kind of an open convention, where you have people nominated and seconded and speeches are given and then the vote is taken. You know, John F. Kennedy didn't get the nomination until Wyoming, the last state voted. I mean, it was really quite close.

ACOSTA: That's fascinating. And my colleague, Laura Coates, conducted a focus group in the swing state of Michigan. Here's what one voter had to say about both candidates.

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[10:35:00]

UNIDENTIFIED FEMALE: I have three teenage boys that are sitting back in there watching this presidential debate. And when I was growing up, we would have never been talking about molestation, rape, and having sex with porn stars. But here we are. So, what kind of example am I setting for these three teenage boys who are watching both of these guys squabble on in this this way?

(END VIDEO CLIP)

ACOSTA: Yes, Larry. I mean, there's been a lot of conversation about Joe Biden's shaky performance last night. But as you said, we're -- as we've been reporting on this program, others have as well. Daniel Dale did -- our fact-checker. Donald Trump basically lied through that entire debate last night. And on top of that, he was kind of, for the first time, called out for his massive character flaws. I mean, he is very much a flawed candidate too. Obviously, the Republican Party's in no mood to toss him overboard. But he's not exactly squeaky clean coming out of this either.

SABATO: Oh, my God. I would never associate the word clean with Donald Trump. Not only was Biden correct to point out these character flaws, he was also correct to call him a convicted felon. He ought to do it more often. But you know what disturbed me more than anything, Jim? It was what Donald Trump said about my little area of Charlottesville, because he lied about that. And then, January 6th, that was the outrageous part of it. Everything he said was a lie.

ACOSTA: So, is it possible, Larry -- and I do have to make this one quick, is it possible that -- because you and I both know this, and when people watch it as it's happening, they can have one reaction, but as the days go by, the coverage sinks in, people can process this and have different reactions. Can Biden pull this thing out of the ditch, do you think?

SABATO: He can, but he's going to have to have a lot of unscripted public appearances. You know, giving interviews to people like you. He's got to go public in an unscripted way and show people that that was exceptional for whatever reason. A cold is not a good enough excuse. But there was something wrong and he has to show people that it wasn't the norm for him.

ACOSTA: Yes. Yes. And I'm not sure a lot of folks bought the whole cold thing either. But all right. Larry Sabato, good to talk to you as always. You always give it to us straight. We appreciate it.

Coming up, did we witness Joe Biden's Nixon debate moment last night? How history might judge his performance? That's next.

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ACOSTA: Democrats are sounding the alarm this morning. But where does last night's debate rank among previous debates? And will Biden's performance go down in the history books for all the wrong reasons? Joining me now, CNN contributor and staff writer for The New Yorker, Evan Osnos. He's also the author of "Joe Biden: The Life, The Run and What Matters Now," and a CNN presidential historian. Tim Naftali is with us as well.

Tim, great to see you. Evan, I'm glad here with you in the studio. Evan, let me start with you. I remember back in 2015 when then-Vice President Biden was thinking about running and he was caught on this DNC conference call saying, I don't have the emotional fuel to run. And this was after his son Beau Biden died. I'm wondering if he's at that moment right now where he's going to have to try to decide in these coming days, based on last night's performance, does he have the fuel to run? Does he have the fuel to make it to the finish line this time?

EVAN OSNOS, CNN CONTRIBUTOR, STAFF WRITER, THE NEW YORKER AND AUTHOR, "JOE BIDEN": This is one of those crucible moments. This is a moment when he is making that decision, and it's a combination of his personal chemistry and the cues he gets from the people around him, which is different, I have to say, than the -- you know, the whole chatter that's out there in the country.

He relies, as you know, Jim, on a small circle of people who he deeply trusts. He trusts their instincts. It's almost sort of beyond having to talk about it. He can read their faces. And it was that moment -- you know, there was also a moment back in 1987 after he had a plagiarism scandal in that race, when he was trying to figure out if he could ride it out. And it was his friend Ted Kaufman who said, look, the only way you escape the sharks here, I'm paraphrasing, is to get out of this race.

But there have been other moments -- and this is the central mythology of Joe Biden's life, is there are times when you get knocked down that you have to get back up. And I think it's those two instincts, to read the room or to believe in your capacity to rise above and to be resilient, that are competing within him right now.

ACOSTA: Yes. And, Tim, what do you think? Do you think the president should be huddling with that tight council of inner circle advisers that he has to decide what to do here? It sounds as though from what we're hearing from the president's campaign is that nope, he's not dropping out. This was just a bad night and he's going to keep going.

TIM NAFTALI, CNN PRESIDENTIAL HISTORIAN AND FORMER DIRECTOR, NIXON PRESIDENTIAL LIBRARY: Well, Jim, Evan wrote a wonderful book on Joe Biden. And Evan would know best if the deterioration that we saw last night is a sign of something much deeper than a cold. My concern is that if indeed the president has something other than a cold will the team around him guide him to a tough decision not to run again?

It's one thing when we're talking about taking the keys away from grandpa so that he doesn't drive anymore. It's something quite different when we're talking about the nuclear codes. And what I worry about, thinking about the grand -- the sort of broad view, is that the power of incumbency is so strong that it is very difficult to convince or persuade an incumbent president not to run again.

ACOSTA: Yes.

NAFTALI: I --

ACOSTA: Or to accept election results for that matter?

NAFTALI: Well, that's a different --

ACOSTA: In Donald Trump's case.

NAFTALI: In Donald Trump's case, that's a unique case in our history.

ACOSTA: Yes.

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NAFTALI: But I was thinking about 1944. And we're in a different era from 1944. In 1944, you could hide the fact that the president had a chronic condition. He had congestive -- that's Franklin Roosevelt, had congestive heart failure. I'm not suggesting that President Biden has a chronic condition, but last night's performance was shocking.

As I said, Evan would know best if it's shocking because he had a bad night or something bigger is at stake and is happening now.

ACOSTA: Yes. It's a good question, Tim. Evan, what do you think?

OSNOS: You know, he has, as you often hear, good days and bad days. Yesterday was clearly a bad day. But, you know, there was also the State of the Union not too long ago, where people said, OK, this is an 81-year-old who's still got some fire in the belly. That was not the person we saw last night.

I think, you know --

ACOSTA: Why do you suppose that happened? Did they over prep him during the debate?

OSNOS: I will say, I did get the sense, having heard a lot of his points before his policy ideas. What it looked to me like he had them all there stacked up in his mind. You know, he was sort of ready to bring them out and they kind of collided into one another like cars on the highway. And there was a way in which you heard him, he was kind of racing through his ideas.

ACOSTA: But the way he was trailing off, and you know Joe Biden, I mean, that is -- that's the kind of moment. That's not just a senior moment or stumbling because you haven't had enough sleep. A lot of us can relate to that this morning. It seemed like something more is going on.

OSNOS: You know, I think he has said for a long time, I feel a lot younger than my age. And that's not an that's not an untrue statement. He, in some ways, has a trouble seeing others seeing him. And he has an idea of himself, which was implanted in him when he was very young and so on. You heard him talk about a bit last night. But the decision to do this debate, you know, to schedule it as early in the campaign as they did, is a sign that he and his campaign thought that sitting side by side with Donald Trump would be to his benefit. And clearly, it was not.

ACOSTA: Yes. And, Tim, I was talking with Larry Sabato about this a few moments ago. Is it possible at this point for Joe Biden to say, that's it, ride off into the sunset and let somebody else come in? The clock would be -- clock is ticking, obviously.

NAFTALI: Jim, we are living in unprecedented times. The very fact that we saw two presidents debate each other is a reminder of that. No, it's not too late. Is it likely? It's not likely, but it's not too late. Remember that Joe Biden hasn't been formally nominated by the Democrats yet. That's what made yesterday's debate so unusual. We had two men who were not actually the formal nominees debating. They don't even have platforms.

So, it is not too late, it is highly unlikely, and it's a decision that will be made for medical reasons by the family and it'll be an issue of retirement. It won't be because he can't be elected, it'll be because he is not up to the task of leading the country for four years.

All right. Tim and Evan, thanks so much. I want to go to Wolf Blitzer now with some breaking news.

WOLF BLITZER, CNN ANCHOR: Major breaking news coming from the U.S. Supreme Court right now. There's been a decision on a very, very important and sensitive issue. Obstruction charges for January 6th assault -- for the January 6th assault. This is a case called Fisher v. United States. Let's go to Pamela Brown. She's over at the Supreme Court for us.

Pamela, set the scene for us. Tell us what the United States Supreme Court justices have now decided.

PAMELA BROWN, CNN ANCHOR: Yes, this is the case, one of the cases we've been waiting for. And essentially, it is a win for some of the January 6th defendants and could have implications for Donald Trump as well.

I want to bring in my colleague Paula Reid for more on this and what the justices ruled.

PAULE REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: We just got this opinion handed to us from the Supreme Court. And here, the Supreme Court is limiting prosecutor's ability to bring obstruction charges in cases related to January 6th. Now, this is significant not only for the people who have been charged with obstruction related to the January 6th attack, but also, potentially for the former president who faces two charges related to obstruction.

Now, we are still reading through this opinion. But what we know right now is this was written by Chief Justice John Roberts, and they're recently tossing this case back down to be relitigated. Now, this case focuses on a former Pennsylvania police officer. He was indicted by a grand jury for seven different counts related to his actions on January 6th. One of them was obstruction.

And he argued that the way the obstruction law is written, it was never meant to apply to what happened on January 6th. Instead, he said it was specifically written to prevent people from interfering with congressional inquiries. It was written in the wake of Enron. So, that he was arguing that this was only meant to apply to people who interfered with evidence or actual investigations, not what happened on January 6th.

And we saw an oral argument. He definitely had some justices who were sympathetic to this argument. So, here, Chief Justice John Roberts, this is one of the biggest cases that we have been watching so far, tossing this back down and limiting prosecutor's ability to pursue obstruction charges against this individual and others.

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And I do have some notes here. We know that approximately 250 cases related to January 6th involved this obstruction case. They are pending. Now, 52 people had already been convicted and sentenced with this specific obstruction charge, and of those, 27 people are incarcerated.

Now, what we have not gotten today is the other January 6th case, which is the question of whether Former President Trump has immunity that would shield him from his charges. It appears we are not likely to get that today, but we know they're going to release more opinions on Monday.

This is a very significant opinion. This is one of the big ones. We've been watching for and waiting for it. I would also expect the former president will weigh in, even though this doesn't have to deal with him specifically, I would expect he's going to weigh in here and talk about prosecutorial overreach or what he would describe as prosecutorial overreach.

BROWN: I want to hone in on the Donald Trump part of this because as you noted, two of the felony charges subversion case stemmed from this It's a federal law, right?

REID: Yes, exactly. BROWN: And even though that has to do with the fake electors scheme, right? Not --

REID: You make a great point, yes.

BROWN: -- if any physical intrusion. But that's not going to stop Donald Trump from at least trying to undermine the case, right, with this one?

REID: That's exactly right. And look, we have to read through this full opinion to see if they speak to that because, of course, prosecutors, Jack Smith is going to argue that Trump's conduct was completely different than those folks who were actually here on Capitol Hill on January 6th. They're going to argue that his obstruction manifested itself differently, but the justices knew this is a question that's going to arise from this.

So, we'll have to look through the opinion line by line to see if the justices give any indication of whether the former president will be able to try to fight his obstruction charges based on this opinion. But of course, we're still waiting for the big Trump related case out of the Supreme Court. The question about whether he and former presidents have immunity, that case we did not get today.

BROWN: Right. He is arguing he should have sweeping immunity as the Former Executive Jack Smith is saying, no, he shouldn't and that his actions were private conduct. So, that's going to be a huge case that will have massive implications.

On this ruling that's just coming out about the January 6th defendants and this obstruction law, you noted the numbers there.

REID: Yes.

BROWN: And at least I believe you said 52 defendants were charged just with this obstruction law. So, what happens? I mean, do they go back and reopen the cases? Some have been sentenced.

REID: Well, certainly I think they're all going to try. If that's your only charge, right, and it's a felony charge, of course, now that the Supreme Court has tried to limit the ability to charge obstruction related to January 6, of course, you're going to try to go back and reopen your case, relitigate it.

Now, we have to see specifically what the Supreme Court said to get a sense of how successful all of those people are going to be. But yes, I mean, this is really good news for the people who were just charged with obstruction as their only felony.

Now, 27 of them are currently incarcerated. So, obviously, for them, this is probably frustrating, but still good news because they may be able to go and potentially, depending on what the Supreme Court said exactly, we just got this opinion, they may be able to have some of their convictions overturned. So, we'll see.

BROWN: I want to go to another big case that actually came out today, a ruling about the power of federal agencies, and it has been severely weakened, which could have implications for everyone in the public and private sector, right?

REID: This is an enormous case. I truly believe that while the questions related January 6 are very significant, they affect hundreds of people, potentially a former president. This case, the so-called Chevron case, this is about the power of federal agencies. This is something that will change life for almost every single American in this country. I'm actually a little bit surprised that it wasn't the last case that was released because usually the most significant case is released last, but we got it shortly before we got immunity.

And here, what they're doing is they're basically overturning about 40 years of precedent where agencies, federal agencies, are given broad deference in terms of technical issues and the power of government and decision making and shifting that back to the courts. Now, that is incredibly significant because -- especially during Former President Trump's tenure and even now, so much discussion about the power of the courts, the federal judiciary. This is a really significant case.

We saw this as the likely outcome, though, in oral argument. And you and I were here yesterday when the court handed down two cases limiting power at the SEC and the EPA. They've been sort of chipping away at the power of the federal government and federal agencies, and we anticipated this is the way this case would go. But in this case, yes, they are overturning again decades of precedent. This goes back to 1984 and shifting a lot of power from federal agencies to the courts. It is an earthquake in terms of the power of the federal government.

BROWN: Yes.

REID: And I would argue, with all due respect to Former President Trump, this is the most significant decision that will make this term.

BROWN: I mean, that -- I just want to soak that up, right? Because you said 40 years, this is what it's been. And it could directly impact every single American and really shifts the power from the executive branch to the judiciary. And as you point out, there's already a lot of discussion about the power that these judges have.

REID: Yes.

BROWN: And this just gives them more power that it could impact you at home. All right. Wolf Blitzer, back to you.

BLITZER: All right. Pamela, thank you very much and thanks to Paula Reid as well. We'll get back to both of you. I want to bring in Elie Honig, our legal analyst, to give us your assessment. This is a major decision by the United States Supreme Court that will limit dramatically these obstruction charges against some of those who went and rioted on the U.S. Capitol on January 6th.

[10:55:00]

And it potentially could affect some of the charges that have actually been leveled against the former president of the United States himself.

ELIE HONIG, CNN SENIOR LEGAL ANALYST AND FORMER FEDERAL PROSECUTOR: Exactly, Wolf. This is an enormous decision. This is a stinging rebuke to the Justice Department. Now, DOJ charged several hundred of the Capitol rioters under a statute called Obstruction of an Official Proceeding.

What the court has said today is that statute does not apply to physical efforts to interfere with Congress. There has to be some element of falsifying documents or forging documents or destroying documents. It's a deep statutory construction, but that's how they came out.

Worth noting, by the way, this is a 6-3 opinion, but it's not your traditional six conservatives, three liberals. Justice Amy Coney Barrett actually dissents. She joins with Sotomayor and Kagan. Justice Ketanji Brown Jackson joins with the majority, including the chief and Alito and Thomas and Gorsuch and Kavanaugh.

Now -- so, this means, first of all, hundreds of DOJ's cases in which they've charged this statute are now likely going to have to be vacated. Now, most of those cases involve other charges too, but there are about 50 or so where the defendant was only charged with this law.

How it relates to Donald Trump? Donald Trump is facing four counts in the Jack Smith indictment. Two of those counts are this count, are obstruction. So, the question for Jack Smith now is, does he try to keep those counts in his case? His argument would be, well, we have these false slates of electors, that's false documents, maybe I'll be OK under this. But he's taking a risk.

So, the question now is, does Jack Smith try to keep these two obstruction charges in his case? He has two other conspiracy charges, or does he drop them and proceed only on the conspiracy charges?

BLITZER: Let's bring in Andrew McCabe and get your assessment. What do you think?

ANDREW MCCABE, CNN SENIOR LAW ENFORCEMENT ANALYST AND FORMER FBI DEPUTY DIRECTOR: I think it lays it out well. I think there's big decisions to be made in the special counsel team over the next couple of months. In whatever direction they decide to proceed. If they maintain those charges, no doubt this decision creates another opportunity for Donald Trump's team to file motions demanding the charges be vacated, and that will provoke decisions, which will then be appealed if they don't go the way the defense team prefers.

So, absolutely, this could result in adding additional delay to a case that we know has already been plagued by numerous delays.

BLITZER: Audie Cornish is with us as well. Audie, what's your assessment? This is a major move right now, a major decision. It affects some individuals who have already been found guilty. Some of them actually pleaded guilty, and some of these charges might now have to be removed. AUDIE CORNISH, CNN ANCHOR AND CORRESPONDENT AND CNN HOST, THE ASSIGNMENT WITH AUDIE CORNISH PODCAST: Well, just to put this in context, this was a charge that often was placed on top of other charges, right? The proverbial sort of throwing the book at these defendants. And so, this is one of the reasons why Mr. Fisher challenged it.

Now, it's worth reading Justice Jackson's concurring opinion, because she basically says, look, it does not appear that Congress intended for this law to encompass so many different things. This was originally passed, as we talked about, in context of the Enron scandal, where there was a shredding of documents.

So, to say that kind of rushing a building during an official ceremony is the same didn't really hold water with the justices. So, I also think -- and Andy McCabe and others can weigh in on this, Jack Smith sort of knew he didn't want to create a scenario where his entire case rested on this particular charge. And while he was watching it closely, I don't think the things he's trying to charge the former president with are dependent on this ruling in the same way that, say, the presidential immunity case could be.

BLITZER: It's interesting, Audie, because two of the four charges that have been leveled against Donald Trump, two of the four involve these obstruction charges, and if they're removed, that would be a significant development right there.

CORNISH: It would. It would not be more significant, however, than a ruling that could come that says, what an official act is for a president and delineates what is and is not immune in those actions. That's really going to have far-reaching consequences. Justice Gorsuch said as much during arguments where he said, this is not just about this president. So, I think that's still the one to watch.

But what this does do is sort of bolster the argument of critics who said, look, the January 6th rioters were somehow sort of over prosecuted or -- I mean, I won't go as far as some people have said in terms of them being persecuted. But those folks can now turn to their lawyers and say, hey, can we look at my sentence again?

BLITZER: Well, let me get Andrew McCabe. I'm curious to get your thoughts. What does this do to the special counsel Jack Smith's case that has already been leveled against Donald Trump?

MCCABE: That case will go forward, either with all four current charges or with only the two non-obstruction charges.

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