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Laura Coates Live
SCOTUS Hears Arguments On Trump's Claims Of Absolute Immunity; Harvey Weinstein's Landmark Sex Crime Conviction Tossed Out; Supreme Court Appears Ready To Delay Trump's Election Trial; Laura Coates Answers Callers' Questions. Aired 11p-12a ET
Aired April 25, 2024 - 23:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[23:00:00]
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LAURA COATES, CNN HOST AND SENIOR LEGAL ANALYST: Good evening. I'm Laura Coates alongside Abby Phillip and our panel here in Washington for a special edition of LAURA COATES LIVE.
What a day in Trump world. The Supreme Court today hearing arguments on Trump's claims of absolute immunity from criminal prosecution for anything related to his presidency. Several justices even seeming open to some level of immunity, while others, not so much.
(BEGIN VIDEO CLIP)
KETANJI BROWN JACKSON, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES (voice-over): I'm trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country.
(END VIDEO CLIP)
ABBY PHILLIP, CNN SENIOR POLITICAL CORRESPONDENT: This case could go back to the lower courts, which would severely delay the start of Trump's federal election subversion trial. That could ultimately mean that Trump's hush money trial in Manhattan may very well be the only criminal trial to actually take place before the election.
And on day seven of that trial, the former "National Enquirer" publisher, David Pecker, has once again taken the stand to testify against Trump, who surprisingly gave him rave reviews.
(BEGIN VIDEO CLIP)
DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES, PRESIDENTIAL CANDIDATE: Today was breathtaking. This room, you saw what went on. It was breathtaking. And amazing testimony.
(END VIDEO CLIP)
COATES: Breathtaking and amazing testimony, huh? Well, that's what you don't hear every day, a defendant calling testimony in his case against him breathtaking. Well, today, David Pecker testified about a deal made with Playboy playmate, Karen McDougal, to kill her story of an affair that she alleges that she had with Donald Trump. He also outlined the involvement of Donald Trump's one-time fixer, Michael Cohen, along with Trump.
Question, when Michael Cohen said, the boss will take care of it, what did you understand that to mean? That he -- that I would be either reimbursed by the Trump Organization or by Donald Trump. Pecker also said he assumed Trump was worried about stories impacting his campaign, not his family.
Question, now, did he ever say anything that made you think that his concern about these stories getting out was for his family, rather than for his campaign? Pecker's answer, I thought it was for the campaign.
We have a lot to talk about with CNN legal commentator and former Trump White House lawyer Jim Schultz, former federal prosecutor Gene Rossi, former January 6th Committee investigative counsel Marcus Childress, former assistant U.S. attorney and the author of the forthcoming book, "Pardon Power," Kim Wehle, and former Republican Congressman Joe Walsh. So glad to have all of you, guys, here.
All right, I want to ask you first about what took place in terms of the cross-examination here, Marcus, because there was a lot. I mean, this is not the Michael Cohen witness where everyone knows you're going to go after his credibility, the fact that he has different guilty pleas for false statements and beyond. This is David Pecker, a longtime friend who has immunity, who has a non-prosecution agreement. How did they do?
MARCUS CHILDRESS, FORMER JANUARY 6 COMMITTEE INVESTIGATIVE COUNSEL: Look, you're trying to chip away at this point on cross-examination. You're not going for a knockout blow. I mean, we've heard you talk about the jigsaw puzzle for the prosecution.
On defense, you're just trying to chip away whether it will be putting more weight on Michael Cohen's testimony. So, saying, hey, if the president is going through Cohen to talk to you each time, if that's the case, now we're really relying on Michael Cohen's word of what Donald Trump was telling him.
So, I think, here, you're not going to get a win, you're not going to get a knockout. You're just trying to chip away at the edges of what the prosecution is trying to prove that you can argue it in your closing argument.
COATES: Kim, why do you think Trump thinks it was amazing, breathtaking testimony? I mean, he detailed "catch and kill" schemes, that he believed that he actually had an affair with Karen McDougal, that they weren't paying money back for what they caught and killed in the past. I wasn't in the room where it happened, but I was listening.
KIM WEHLE, AUTHOR, FORMER ASSISTANT U.S. ATTORNEY: VISITING PROFESSOR OF LAW AT AMERICAN UNIVERSITY: I think it goes to really the strongest defense here, which is so what? Which is, listen. This is what people do, like Donald Trump. This is what celebrities do when they don't want bad information coming out. They work these deals out.
The government has to prove that there was an intent for Donald Trump to falsify records and that there was an intent to cover up these election crimes. I think it's hard for them on the facts, the defense, to actually dispute that meaningfully, that it seems like he has established Donald Trump was part of this and everybody knew this was about keeping information quiet.
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So, the strongest defense really is where his lawyer came out in the opening statements and said, this really shouldn't be a crime, this is just hush money payments, I'm sure it was around election, elections are kind of brutal and you do what you can to get elected.
COATES: That sounds a lot like what the attorney for Donald Trump said in opening statements, right? It's not a crime to interfere with an election. You call that democracy.
PHILLIP: Well, you know, I mean --
(LAUGHTER)
-- you can say it that way, but I'm not sure that's 100% true. I mean, one of the interesting things that I find about David Pecker, right, and what he testifies to, and the reason I find the Karen McDougal story so interesting, is what changed between Karen McDougal and Stormy Daniels.
He talks about not wanting to get involved in Stormy Daniels. He says, I am not purchasing this story, I am not going to be involved with a porn star, as if suddenly this is a line he's going to draw. I am not a bank. And he says about Michael Cohen, Michael Cohen was really upset. He said that the boss would be furious at me and that I should go forward with purchasing it.
He was also, in other parts of his testimony, he was worried about the legal implications. He consulted lawyers. He consulted campaign finance experts. He seemed to be spooked by what he had just done for Karen McDougal and didn't want to do it again.
GENE ROSSI, FORMER FEDERAL PROSECUTOR: I represented Keith Davidson. He's going to be a key witness in this trial. He's the one who negotiated the NDAs with McDougal and with Stormy. And the timeline, as Professor Kim knows, is crucial in any prosecution. In August of 2016, Keith Davidson would say, this is public, that he had a meeting with Dylan Howard, who unfortunately is not a key witness.
PHILLIP: But has been brought up quite a lot today.
ROSSI: Abby, they discussed with Karen McDougal, having her on the cover of magazines, writing articles about intellectual topics. The luncheon was a joke. It was to kill the case. What happened was, on October 7th, Access Hollywood. After that tape came out, Michael Cohen and Donald Trump were shitting their -- you know what. I hope I don't get blocked.
(LAUGHTER)
COATES: You added the flare and then added -- no, the --
PHILLIP: That was the wrong, you know what.
ROSSI: But here's what happens. In the next three weeks, in the next three weeks, I hope I don't get kicked off the show.
PHILLIP: It's okay.
ROSSI: In the next three weeks, there was a fervent effort to kill Stormy Daniels. Fervent.
COATES: The story?
ROSSI: The story. And October 27th, NDA was signed, money was transferred. You asked what changed it. The Access Hollywood tape was crucial in getting Trump's attention. Before that, Karen McDougal was just another one of his alleged affairs, and he couldn't care less, frankly.
COATES: Well, you know, Jim -- Jim, on this point, it's important because the timing of it is where it's -- I mean, these alleged affairs happened not in 2015. It happened years ago, allegedly. So, it's important to think about that. But, you know, you have David Pecker on the stand talking about these issues. We're going to likely have Stormy Daniels, Michael Cohen as well.
And then you also heard Donald Trump today saying that he might very well take the stand as well. I know you've thoroughly represented him. I want to play for you what he had to say about the prospect of possibly doing that.
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UNKNOWN: Are you more or less likely, you think, to take the stand in the Manhattan case right now? I know --
TRUMP (via telephone): Well, I would if it's necessary. Right now, I don't know if you heard about today. Today was just incredible. People are saying, the experts, I'm talking about legal scholars and experts, they're saying, what kind of a case is this? There is no case.
(END VIDEO CLIP)
COATES: Okay. I have legal experts at the table right now. But I want to ask you, Jim, on that very point. If necessary, he's looking at and evaluating each witness's testimony. What was it about David Pecker's testimony, you think, that is making him to think -- if it's even necessary? Last week, he said he would testify.
JAMES SCHULTZ, CNN LEGAL COMMENTATOR, FORMER TRUMP WHITE HOUSE LAWYER: So, I think that he will throw whatever he wants to throw out there, right? So, I wouldn't read too much into it. One day, he's going to say he's going to testify because he needs to defend himself. The next day, he's going to say, this case is BS, and I don't need to testify because it's garbage. So, you're going to hear that throughout the trial, especially as he absorbs the information day in and day out.
I just -- I don't think you can give any logical credence to what he says about whether he testifies or not because I don't think -- I think at the end of the day, his lawyers are going to adamantly be against him testifying because there's a whole lot of stuff that's going to come at him. The judge is going to allow it. He doesn't -- they're not going to want that in the public domain.
COATES: Stand by, everyone, on that very point. Figure out what the judge will actually limit testimony about. David Pecker also testifying today how the alleged cover-up extended even into the White House.
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Now, this image of Trump and Pecker talking outside the Oval Office in July of 2017 was presented in court today. And here's how Pecker described that conversation, saying -- quote -- "As we walked out, President Trump asked me, how is -- how is Karen doing? He said, how is Karen doing? So, I said, she's doing well. She's quiet. Everything is going good."
Now here to shed more light on the testimony, Olivia Nuzzi, who is Washington correspondent for "New York Magazine." You have been in and out of this courtroom following this so closely all week and, of course, this candidacy and this candidate for a long time. What's this exchange between Trump and Pecker tell you about the Trump White House?
OLIVIA NUZZI, WASHINGTON CORRESPONDENT, NEW YORK MAGAZINE: You know, you remember, of course, how chaotic that Trump White House was. It was chaotic in the entirety of the four years. It ended in chaotic fashion. But that first year in particular, every day, it was a new crisis and there was a real lack of discipline, not that it really ever got better.
But it all makes a lot more sense when you learn that the president sitting in office was really preoccupied with the matter of the affairs that he had sought to cover up as he sought the presidency. It was really stunning to hear from Pecker that he was meeting with Trump in the Oval Office. He was talking about this, and taxpayer-funded officials, people like Sarah Huckabee Sanders, Hope Hicks, were involved in covering up these hush money payments.
COATES: Yeah.
PHILLIP: I mean, to that exact point, Sarah Huckabee Sanders's name coming up.
NUZZI: Uh-hmm.
PHILLIP: She was a senior White House official at that time. So was Hope Hicks. Hope Hicks, though, we know from our reporting here at CNN, is likely to also testify. Did you get a sense of what she might be willing to, maybe forced to disclose in that kind of testimony?
And what is the relationship right now between Trump and Hope Hicks, who at one time was somebody who was basically tied to him at the hip? Everywhere Trump was, Hope Hicks was, too. That's no longer the case. But what's that relationship like?
NUZZI: I think that of all of the witnesses that the prosecution will bring in this trial, Hope Hicks will probably hurt Donald Trump the most. I think she's the only witness who might actually get some sort of emotional reaction from Trump sitting there in that courtroom. She was around all the time when I started covering Donald Trump in 2015.
I mean, one of my first assignments was to profile Hope Hicks for GQ magazine. I've known her a long time. A lot of members of the press have known her a long time. She is a very reasonable person, a very intelligent person. She has a photographic memory, nearly. I think that a jury will find her extremely credible. I don't know what exactly she is going to say, but the fact that she will be testifying for the prosecution, I think is extremely significant.
COATES: You don't also doubt that it will be voluntary, right? She'll be compelled to testify.
PHILLIP: And once you're under oath, I mean, you've got to answer the questions truthfully.
COATES: Yeah. You really do. And then, by the way, there was a story of a Trump Tower meeting, Olivia, back in 2017. The attendees included Pecker, FBI Director James Comey, and then incoming CIA Director Mike Pompeo, among others, by the way. Here's how Pecker characterized Trump's introduction to the room, saying -- quote -- "he said, here is David Pecker. He's the owner, the publisher of the National Enquirer, and he probably knows more than anybody else in this room, as a joke. Unfortunately, they didn't laugh."
Now, later in that meeting, Trump would ask Pecker for updates on Karen McDougal, again. So, what does it say to you that Pecker would have been in a meeting with them?
NUZZI: I mean, it really goes all the way to the top. It's hard not to think about all the president's men while watching this trial unfurl. There is something sort of cinematic and I guess Coen brothers-esque about the whole thing. I kept thinking that it's sort of like all of the resistance fever dreams of the last several years. It's almost like it's all much more literal and much more obvious than you would think that reality could possibly allow. And yet with each detail coming out of this trial, coming out of this testimony, it just gets more and more ridiculous.
COATES: I love a Coen brother reference. They're from Minnesota, Abby.
PHILLIP: Oh, yeah.
COATES: Well done, Olivia. PHILLIP: Olivia, thank you so much. I'm back with our panel now. Joe, this is maybe a perfect opportunity to just talk about the absurdity of it all. You are the CIA director and you're sitting in a room with the head of a tabloid publication.
Donald Trump bringing his tawdry excesses into the White House and the Oval Office, putting aside the legalities of it all, that is something unlike we have ever seen -- well, almost unlike we have ever seen in American history. And the degree to which it really went from the campaign all the way into the White House, that colors everything that came after that.
JOE WALSH, PODCAST HOST, FORMER ILLINOIS REPRESENTATIVE: And you don't want to brush away the legalities because that is a big deal. But, Abby, it is absurd.
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For four years -- I mean, clearly, I think there's a part of Trump that never thought he'd win in 2016, and then he won. And then he was obsessed with making sure he won and nobody thinks that Russia interfered. So, he spent all four years worrying about how people thought about how he won, and then obsessed with the 2020 race. And it's amazing that anything got done. But, Abby, you're right. It was all about the campaign, even in the White House, day after day.
COATES: You know, I wonder, too, about how this all plays because, and you know this quite well, that this idea that the American public might not know the inner workings of how politics works, right? We get a lot of our news in terms of our insight and things like that from, frankly, television and what we learned about in the news. But that seems to be part of this strategy here.
PHILLIP: That's the defense's argument.
COATES: Yeah, to say, listen, well, this is how the sausage is made, people. Wake up, you're naive, think of anything different. The prosecutors have to overcome that.
PHILLIP: Yeah. And with this -- I wonder, Kim, what you think about this jury, though. When I think about the composition of this jury, this is a Manhattan jury, people of all different stripes. But you've got a couple of lawyers in there. You've got some people who have some knowledge. How does that kind of overly simplistic argument play with them?
WEHLE: Well, I was actually, when I was at DOJ, I was on a jury. They have to do that in Washington. And when that happens, that person can become the person who explains the jury instructions, explains what it means to have elements of a crime. What does it mean to have to have a burden of proof beyond a reasonable doubt? That kind of thing.
That being said, when it comes to credibility and that gut instinct, that's going to be a juror by juror situation. And the jury that I was on, there were a couple of jurors that just said, I don't believe police officers, and there were witnesses that were police officers. And so, the defendant was acquitted. But this is not a helpful jury for Donald Trump. It's going to be very different if the Mar-a-Lago case in Florida ever goes forward.
And there's something sort of artificial about impaneling a jury and saying, can you set aside your previous views? Can you set aside your biases? You know, I'm not a psychologist or sociologist, but I think that's difficult to ask anyone to do in day-to-day life. Everyone has kind of a sense of whether Donald Trump should be held accountable, and that, I think, is going for the prosecution and for Alvin Bragg.
COATES: And, of course, we're going to have to -- looking at that jury questionnaire, they were all asked about that. It was extensive and far more elaborate than probably any of you have seen in jury selection before for that very reason.
Stand by, everyone. We've got a stunning decision in another case. Harvey Weinstein's New York sex crimes conviction thrown out. It could have a hell of an impact on Donald Trump's hush money trial. I'll explain why, next.
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PHILLIP: Today in New York, an appeals court ruling four to three to toss out Harvey Weinstein's sex crimes conviction. And now, their ruling could reverberate through Trump's hush money trial.
How? Well, in Weinstein's case, the court found that the judge in that case made a mistake by allowing prosecutors to call witnesses whose accusations were not part of the charges against Weinstein.
COATES: By the way, that's not all, because the appeals court all said that the judge was wrong to allow other alleged wrongdoing to be brought into questioning if Weinstein had testified.
And remember, in Trump's trial, Judge Juan Merchan is all saying that if Trump wants to testify, he could be questioned about certain past legal run-ins. And by the way, this is a Manhattan D.A. case, which means Alvin Bragg will be the one to retry this case.
I want to bring back in the panel here. James, this is exactly what appellate lawyers salivate over, when you're talking about so-called prior bad acts, when you bring in uncharged conduct to show a pattern of something, the M.O. we were talking about earlier. They're going to have to tread lightly now, knowing that they can't go too far without prejudicing them.
SCHULTZ: Yeah, I think, look, you're going to -- you're going to see those arguments down the road about this whole line of questioning about Karen McDougal, right? Because it's really not charged conduct at the end of the day. I think --
COATES: And the doorman, maybe, too. SCHULTZ: Yeah, but I think in this case, I think it ends up because it shows a pattern of conduct. I think the probative value outweighs the prejudicial effect on it. I think a court will find that. But there is some risk associated with every witness they bring in that kind of talks about things that aren't related to the charged conduct.
COATES: How about the "National Enquirer" headlines? That was a moment people were talking about, all the different discussions about not only the "catch and kill" schemes but also pointing out negative press for their rivals.
WEHLE: Well, as indicated, for the judge, they have to really decide what is prejudicial, what is unfairly going to taint the defendant and his constitutional rights, and what's probative. And it's a very sensitive, nuanced, case by case, piece of evidence by piece of evidence-type issue.
The judge does get some deference on appeal, but at the end of the day, that's what we're talking about. I agree, in this case, when they're trying to establish the "catch and kill" scheme, they're trying to establish Donald Trump's knowledge of it. That's probably different than the Harvey Weinstein where, listen, this guy is just a sex addict.
COATES: Marcus, from your opinion, does the Access Hollywood being able to be referenced but not played, because that's when the judge did this sort of prejudicial versus probative or otherwise informative value, saying, you can't play it, it's too prejudicial?
[23:25:01]
But you can reference it or the fallout from it. Does that help to get ahead of what could be an appellate issue?
CHILDRESS: I think it does. I think it's actually a pretty safe, conservative way of the judge to preserve the record for that appeal risk. Look, you have to have something to reference. Otherwise, the jury is, like, why is there fallout? What are we talking about here? So, you have to be able to reference it.
But as a prosecutor, you also can't take it too far, right? So, reference it so the jury has a point of context, but then don't really argue it, and then continue with the evidence that's actually before the jury in court.
COATES: What if the --
ROSSI: I just wanted to put in the prosecutor's argument that this case is different than Weinstein. It's for at least two reasons. The government is arguing conspiracy under New York law, and as Professor Kim knows, when you have a conspiracy, you find a starting point, which was August of 2015. That's the four-legged stool. That was the conspiracy slash scheme.
COATES: Where Pecker agreed to be the eyes and ears. ROSSI: Absolutely. Hope Hicks may be in that meeting. So, the conspiracy just continues on. These events, the doorman, the Karen McDougal and, of course, Stormy, which is charged, their overt acts in furtherance of the conspiracy.
Alternatively, if you don't have conspiracy, it's part of the four- legged scheme, and the doorman and Karen McDougal are part of the scheme that eventually ended with --
COATES: Stormy Daniels.
ROSSI: Stormy Daniels. But I want to go to Hope Hicks. Hope Hicks is going to be an explosive witness, based on my knowledge of the case and meeting with the prosecutors in the Trump U.S. attorney's office. Mr. Jordan said it's a brag case. This started off as a Trump Justice Department U.S. attorney case. They had four brilliant prosecutors. I met with them with my client. So, it started in an SDNY. It's not a brag case.
But I want to go to Hope Hicks. After the Access Hollywood tape, there was a flurry of communication between my client, Michael Cohen, and indirectly Hope Hicks, who was on the plane with Trump. And in those three weeks, Hope Hicks was conveying information from then-candidate Trump to Cohen. And you can guarantee it was all focused on how do we shut her up because it's going to affect the election.
And that gets to what you said at the beginning, keep it simple, stupid. The false invoices are driven, and they are the seed and the result of affecting the election. The false invoices would not be made but for that deal.
PHILLIP: Jim, are you buying that?
SCHULTZ: Yeah. Look, I don't know the facts as you know them, but Hope Hicks is certainly going to be an important witness for the prosecution. She's certainly going to have to be compelled to come in. I can guarantee you Hope Hicks doesn't want to testify in this case and doesn't want to sit before a former boss.
But I also know that Hope Hicks is going to come in and tell the truth, right? She is going to come in and tell the truth, you know, no matter how much it pains her to do so, to come in and testify generally. She's going to come in and tell the truth because that's who she is. That's what she'll do.
COATES: Well, we'll see.
PHILLIP: All right. It's explosive. We'll see what happens. Everyone, stand by for us.
Just up ahead for us, are presidents immune if they order a coup, for example? That question was before the Supreme Court today, and the answer has huge implications for what Trump's January 6 trial could look like and when it could start. Inside today's arguments, that's next.
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COATES: The second act in Donald Trump's legal double feature today occurred about 200 miles south of I-95 from New York. While some of his legal team spent the entire day in the courtroom in lower Manhattan, other lawyers were arguing before justices at the Supreme Court on Trump's claim of what he calls absolute immunity.
Now, they were signaling today that they could very well send this case back to a lower court which, of course, would delay the special counsel's 2020 election subversion case. That was supposed to start back in March. It's almost May.
But they also sounded skeptical about Trump's blanket immunity defense. Trump lawyer, John Sauer, argued that Trump's actions were official acts of the office. But in one exchange, the Trump appointed- justice, Amy Coney Barrett, questioned what exactly was an official act and what was a private act to benefit Trump.
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AMY CONEY BARRETT, U.S. SUPREME COURT ASSOCIATE JUSTICE (voice-over): Petitioner turned to a private attorney was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Private?
SAUER (voice-over): As alleged, I think we dispute the allegation but that sounds private to me.
BARRETT (voice-over): Sounds private. Petitioner conspired with another private attorney who caused the filing in court of a verification signed by petitioner that contained false allegations to support a challenge?
SAUER (voice-over): That also sounds private.
BARRETT (voice-over): Three private actors, two attorneys, including those mentioned above, and a political consultant helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding and petitioner and a co-conspirator attorney directed that effort.
SAUER (voice-over): You read it quickly. I believe that's private.
BARRETT (voice-over): Yeah.
(END VIDEO CLIP)
COATES: With me now is Jack Rakove, Pulitzer Prize-winning author, historian, and professor at Stanford. He'd also signed on to an amicus brief to the Supreme Court rejecting Trump's immunity claims. Thank you for joining us this evening. It sounds like this immunity question may not be close to being resolved completely and could actually go back to the lower courts. What is your opinion of if that were to happen and you don't get the answer resolved fully by this Supreme Court?
JACK RAKOVE, PULITZER PRIZE-WINNING AUTHOR AND HISTORIAN: I suppose my basic answer would be a political disaster for the country as a whole.
[23:34:57]
And I think the basic reason for that is that, speaking in a sense on behalf of the founders, which is what the historians group of whom I'm a part have been studying, I think the framers of the Constitution, the founders more generally, would have expected a matter of this urgency to be resolved in advance of an election and not to be kind of slow walked at the quirky pace we've been moving at so that people would not be able to have an informed judgment about the qualifications of a leading candidate.
COATES: I mean, as you described it, it makes sense to think that the idea of whenever you have a president, you want some urgent clarification as to what the bounds of their power actually is. Elections are important. But also, there are -- is a president right now.
I wonder what you made of the hypotheticals that were proposed about the future. There was not a lot of time spent on January 6th or the election subversion case, but more, as I think it was Gorsuch who says, deciding a case for the ages. What did you make of the focus from this court on this issue?
RAKOVE: Well, the issue is so anomalous, just as Trump's behavior is so anomalous, that the idea that you can take the, on the one hand, quirky, but also really deeply troubling circumstances that surround January 6th, and say that on the basis of that one situation, you can decide a case for the ages, will strike most legal commentators, certainly most historians, it's being a deeply problematic statement.
I think Justice Barrett, in her exchange with Sauer, the petitioner's attorney, I think she nailed the key points, that there were a number of very specific matters that one should focus on. Justice Alito, when he intervened in his own way, kept trying to deny the importance of the immediate issues to kind of speculate about what might happen in the future.
You know, we have an urgent issue right now. That issue needs to be resolved. We can worry about the future when the future comes. We have to get through the current crisis of the republic, which is why the court should be acting expeditiously.
COATES: Well said. I mean, listen to this exchange as well between Justice Elena Kagan and Sauer, about this hypothetical question of prosecuting a former president who, for example, staged a coup.
(BEGIN VIDEO CLIP) ELENA KAGAN, U.S. SUPREME COURT ASSOCIATE JUSTICE (voice-over): I don't feel like leaving office. I want to stage a coup. Is that immune?
SAUER (voice-over): If it's an official act, there needs to be impeachment and conviction beforehand, because the framers viewed the writ that, that kind of --
KAGAN (voice-over): If it's an official act, is it an official act?
SAUER (voice-over): If it's an official act, it's impeachment.
KAGAN (voice-over): Is it an official act?
SAUER (voice-over): On the way you've described that hypothetical, it could well be.
(END VIDEO CLIP)
COATES: Now, of course, in your amicus brief with other historians, you forcefully argue against this assertion that a president can only be prosecuted only after being impeached and convicted. So, what do you make of his answer that he gave today? And I would note, he also doubled down earlier on this assertion that a president could order, say, CL Team 6 under an official action to even hurt a political rival.
RAKOVE: Well, from a historian's perspective, you know, we don't deal in hypotheticals. We deal with things that -- things that actually happened and views that people actually adopted. I think the most important thing we'd say is that in the 17th and 18th century, both England and America, the dominant theme in constitutional thinking was how do you cabin, how do you control, how do you restrain, how do you constitutionalize executive power.
You know, Sauer, the attorney made a big point of appealing to the vesting clause of Article 2, which says the executive power shall be vested in a president of the United States. That clause has been carrying a lot of interpretive weight recently, probably more than it really deserves because it's adopted very late and without much discussion.
But if you ask the question, what is the nature of -- what is the nature of the executive power that is vested in the president? I think the historian's first definition would be that he shall take care that the laws be faithfully executed.
And I think the best commentary on this actually came from John Dickinson at the federal convention where he says that the real virtue of vesting the executive power in a single person, it's not the question of acting with energy and with dispatch, those were two terms that the framers used, it's also the question of responsibility.
So, the idea of recognizing this open-ended, unconstrained, in certain ways unimaginable degree of immunity, there's no way you can square that with the dominant value of Anglo-American thinking from the late 17th century down into the time of the revolution and the Constitution, which tries to make executive power responsible, and indeed which concentrates the executive power in a single person to enhance that end.
So, the whole immunity argument would strike all the historians, my friends and colleagues who were the co-signers of the brief. It just strikes us as being in a certain sense historically nuts.
[23:40:01]
COATES: And that's why we need historians. Thank you so much, Jack Rakove. Thank you so much for joining us tonight. I want to bring back in our panel.
PHILLIP: Historically nuts. I like that.
(LAUGHTER)
UNKNOWN: That's a good one.
COATES: That might be a new brand. Something called Planters (ph). Marcus, you were actually in the Supreme Court. I'm just wondering what that was like in those moments. We were all listening to it and getting a sense from the outside. But what was the atmosphere like in there? What was that? Was it tensed? Was it relaxed? Tell me about it.
CHILDRESS: So, I remember the very first primetime hearing from a couple of summers ago. It was probably the heaviest feeling I'd felt before hearing. We wanted to get it right as a committee. And you just felt like stressed before it started. I felt the similar way --
COATES: History was in waiting for you to act. That's probably what's it.
CHILDRESS: It really was. Our work was going to be judged for history, right? And I felt like the Supreme Court, you could tell the justices could tell that what they were going to decide in the next month or two would be remembered historically. I mean, that's kind of how they started out. Trump's counsel saying that no president, as we know it, will be the same moving forward if they don't have absolute immunity, right?
And so, it just felt like it was very historical moment. There were a few moments where jokes were made, like Justice Alito saying you can get a ham sandwich indicted. That made us laugh a little bit, to bring it back. But it was a very tense, you know, two hours and 45 minutes in that courtroom.
PHILLIP: I mean, I do not understand why the Supreme Court decided to take this case. I still don't. And especially now after today because it seems pretty clear that they could -- the court has leeway to decide what they take, what they decide to settle and what they don't. There are a lot of legal issues out in the world that are not settled. Not all of them need to be settled right now. This one does not strike me as something that needs to be settled right now. Why are they doing this? ROSSI: Because Donald Trump is a candidate for president and several of the justices were appointed by him. But I just want to --
PHILLIP: Do you think also that they might be worried about establishing those boundaries of where the presidential power is in the event of a Donald Trump presidency in which he might, you know, test some of these things?
ROSSI: I agree. And I predict this. Justice Roberts, I believe, will be thinking about Dred Scott, Plessy versus Ferguson, the Nixon tapes case, and he will know that where he stands, majority or minority, will haunt him for the rest of his life. And he wants to establish himself in history. They read the papers.
So, I predict -- I have -- I I'm being a Pollyanna. I think Justice Roberts is going to do the right thing. And you could possibly see a five to four opinion rejecting absolute immunity. And it's Justice Roberts and the four women. I predict that could be it.
I do want to add one last thing. Nobody has mentioned this. There should have been eight justices hearing that case today. Justice Thomas -- Justice Thomas. I teach legal ethics. Professor Kim does. There is no ethics lecture at law schools or any level that would say there's not an actual conflict or at a minimum an apparent conflict. He should not be hearing this case. Period. End of story.
WEHLE: Well, you know, it's funny we're talking about no more kings, the professor, this idea that historically the whole point of the revolution was no more kings, and we've created nine kings. We have a Supreme Court that essentially has no accountability.
And that's why we're in a position where someone is with these egregious conflicts of interests that really give him an incentive to favor Donald Trump because his wife was involved, et cetera. There are all these public conflicts or the justices being, you know, jetted around by billionaires with interests before the court. But there's no enforcement mechanism for ensuring that these people are nonpartisan other than life tenure, which ironically makes them even more, I think, above law in this moment.
So, I wasn't frankly that surprised that they took it for that reason. It's almost just candy. It's too tempting. But the problem, to Abby's point, was the way they frame the issue on appeal. They could have framed it very narrowly --
PHILLIP: Yeah.
WEHLE: -- like Justice Barrett did. What -- when you're trying to take an election from the voters, a legitimate president, but through violence, using the power of the office, is that immune? And that's generally what judges do. They call balls and strikes on narrow cases.
And here, the judges, the justices, have given themselves the power to legislate, to basically put a new -- brand-new constitutional provision in for constitutional immunity and make up a bunch of tests and factors. COATES: You were a former legislator. What do you think of that?
WALSH: I want to yell. I want to give a -- I want to belt out a non- legal scream. Listening to the last 15 minutes, this split screen of hush money to a porn star and a guy who tried to overthrow an American election, and the hush money to the porn star is the only trial that we're going to have this year.
[23:45:00]
Nobody is going to address the -- Trump caught such a freaking break that this is the first and probably only trial. He tried to overthrow an American election. I served with Jim Jordan. I don't want to scream. I'd like to punch Jim Jordan. No, you -- the voters deserve to know before they vote in '24 if the Republican candidate was convicted of trying to overthrow the '20 election. The voters need to know that, and we're not even going to get to it now.
COATES: Well, you look at these issues, though, and to your point of the, why not, why now, above all things, well, they could have easily just not taken up the case and the lower court ruling would have stood, right? They could have had that.
CHILDRESS: Or in December. Or in December.
COATES: Or in December before all this happened.
PHILLIP: Or they could have said, narrowly, let's deal with the Trump part of this. We don't need to answer all these. It's called a can of worms, as my mother would say. He -- they opened up a can of worms. And here we are, we'll have to deal with it.
COATES: Well, we'll have to deal with it again. And, of course, we don't know when they're actually going to rule. They have until the end of their term. And they usually wait for these media issues to the very end, unfortunately.
Stand by, everyone. A lot of questions at today's flurry of Trump legal developments, and we've got answers to your live calls and questions, next.
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[23:50:00]
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COATES: An absolutely huge day in the Trump legal world. I know you all have a lot of burning questions and we're taking your calls tonight.
(PHONE RINGING)
I love that little ringtone. Who's better to help answer them than our fabulous panel. Again, if you want to participate, just go to CNN.com/TrumpTrialQuestions, fill out the form, type in your question there, and then we'll reach out to have you call in as a trial unfolds.
Let's get to our first caller tonight. We've got George from Newton, Massachusetts. Hey, George, what's your question?
GEORGE, CALLER FROM NEWTON, MASSACHUSETTS (via telephone): Okay. So, many politicians are routinely guilty of political deception. So, how is the boundary between criminal and non-criminal political deception defined? And also, would the judge provide some guidance on this distinction to the jury?
COATES: Hey, that's a great question. I'll let Marcus take that answer.
CHILDRESS: The judge is actually going to instruct them on the crime at stake. So, let's say the election subversion case. It's the conspiracy to defraud the United States, to overturn the election. And the evidence in support of that is pressuring state legislators, calling Georgia looking for 11,700 votes, creating a fraudulent state of electors. That's the crime. It's not the deception piece. It's conspiring to overthrow the election.
And so, you always got to tie it back to a criminal statute. It's not just political deception here. There's a criminal statute at play, the judge will instruct the jury about it, and the evidence that can be considered and how it can be considered.
COATES: So, is that line so blurred for politicians?
WALSH: It's completely blurry. And this goes to what you said at the beginning of this hour. Trump doesn't think this is a big deal. So, what? Everybody -- you know, you cover your tracks because you're trying to get elected. You pay off a porn star. Big deal. And I think a lot of voters think the same thing.
COATES: That's unfortunate. Well, next up is Marva from Columbia, Maryland. Columbia, Maryland. Marva, what is your question?
MARVA, CALLER FROMO COLUMBIA, MARYLAND (via telephone): Hi, Laura.
COATES: Hi.
MARVA (via telephone): I watch your show.
COATES: Oh, great. Thank you.
MARVA (via telephone): My question is, we've heard the names of some of the witnesses that are going to testify for the prosecution in the Trump trial, but has the defense put out a list of the witnesses they plan on calling to testify on Trump's behalf?
COATES: That's a good question you've asked because Trump's lawyer said that they do plan to call at least two witnesses in this case. One is Bradley Smith, a former commissioner of the Federal Election Commission. The other person is Alan Garten, the top legal officer of the Trump Organization. And, of course, Merchan does have some limited scope here. But Jim, what's your take? SCHULTZ: In the pretrial submission, the both parties have to disclose to the court who they're going to call. Now, in the case of the prosecution, I think they've held back some of the names so far. The judge has the discretion whether to turn those over to defense. He has given a couple of names, but not all of them at this point.
COATES: What do you think? Would you turn over your whole list at this point?
ROSSI: No. Defense attorneys usually get a little break. You're required to disclose a little bit of the list. You can always say, Your Honor, when the trial began, we weren't sure what they were going to say on the prosecution side, so we're adding these witnesses at rebuttal. So, it's not uncommon for the defense to give a short list.
COATES: Gosh, I remember just a couple days ago when the prosecution was fighting over whether to hand over the name of their first witness on Sunday. Lyle from Bellingham, Washington. What is your question? Hey, Lyle.
LYLE, CALLER FROM BELLINGHAM, WASHINGTON (via telephone): Hello, Laura. Thank you for taking my call tonight.
COATES: Thank you.
LYLE (via telephone): My question is -- my question is, if after all the evidence is presented against Mr. Trump in this case, and the trial ends in a hung jury, can Mr. Trump be tried again on the evidence? And if so, how soon afterwards?
COATES: It's a great question. Let's go to Kim.
WEHLE: Well, if it's a hung jury, they couldn't actually try him again. But I think given the timing and given that you're talking about a former president and given that there are some flaws in the case, that probably means Trump walks.
COATES: Hmm. Is that over for all of them? The idea of a hung jury, though. How about the idea of double jeopardy? They want to know about that as well. Would that attach instantly now? It's done?
WEHLE: I think double jeopardy attaches once the jury is seated. But if there are problems in the conviction, then in certain circumstances, there can be a second trial.
COATES: Really important. Thank you so much for our panel for helping to answer these really important questions. And thanks to everyone who also called in.
Hey, do you have a question you'd like answered? Well, we want to hear from you. You just got to submit your question at CNN.com/TrumpTrialQuestions.
Thank you all so much for watching.
[23:55:00] I love being next to Abby Phillip. Our coverage continues. Anderson Cooper is next.
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ANDERSON COOPER, CNN HOST: Good evening from New York where the tabloid publisher, who said the former president was a mentor to him, described today what he did to help that man to win the White House.
KAITLAN COLLINS, CNN WHITE HOUSE CORRESPONDENT: And hi from Washington where the Supreme Court heard arguments today for and against making any former president immune from criminal prosecution for acts in office, and letting this one off the hook for trying to stay in the White House despite losing the election.
COOPER: Two courtrooms, two cases, one person at the center of both which in itself is something that a single individual should be responsible for today's legal traffic jam and tonight's split screen special primetime coverage.
[00:00:02]
Here in New York, the former president's criminal trial continue whit more testimony from his one-time friend and former tabloid publisher, David Pecker.
