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CNN Live Event/Special

Federal Judges to Hear Presidential Immunity Arguments. Aired 9-9:30a ET

Aired January 09, 2024 - 09:00   ET

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

[09:00:30]

LAURA COATES, CNN ANCHOR: Any moment now Donald Trump is going to be arriving at a federal courthouse in Washington, D.C., where a three judge appellate panel will hear arguments on a very crucial question, can the former president be held criminally responsible for his efforts to overturn his 2020 election loss or does he have immunity from prosecution. This is special coverage. I'm Laura Coates.

KAITLAN COLLINS, CNN ANCHOR: And I'm Kaitlan Collins.

This high-stakes decision could ultimately change the landscape of what presidents are allowed do while they're in power. Trump is foregoing the campaign trail today to be at these oral arguments in Washington as he is claiming that he has, quote, "absolute immunity," insisting that his actions constitute official acts that he took while in office.

(BEGIN VIDEO CLIP)

DONALD TRUMP (R), FORMER U.S. PRESIDENT AND 2024 PRESIDENTIAL CANDIDATE: Of course I was entitled as president of the United States and commander in chief to immunity.

I'm entitled to immunity. Every president has immunity. Especially one that did the job I did. I did a great job. And I wasn't working for myself, I was working for the country. I wasn't campaigning. The election was long over. Wasn't campaigning. I was looking for voter fraud, something that I have to do under my mandate.

(END VIDEO CLIP)

COLLINS: That argument has already been rejected by the district judge in this federal election subversion case against Donald Trump. Special council Jack Smith warned that Trump's assertion, quote, "threatens the license -- to license presidents to commit crimes to remain in office."

We have got a lot going on here this morning, obviously.

COATES: We do. Let's talk to our great panel here to talk about all these issues because it's so important to, first of all, take a step back for a second. We have, of course, Elie Honig, who is here, our senior legal analyst and former U.S. attorney for the SDNY, and also former January 6th Committee lawyer Temidayo Aganga-Williams.

I'm so glad that both of you are here.

Let's take a step back for a second, though, because when people hear court, they think either trial and "Law & Order," or they think the Supreme Court. This is neither of those moments. This is going to be very specific. What do we expect, big picture, about why we're here?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Always good to orient ourselves, right? There's so many cases happening here.

So, this is Jack Smith's federal indictment for election interference based in Washington, D.C.

Now, Donald Trump argued to the trial judge, Judge Chutkan, that he's immune, meaning he cannot be prosecute because he claims that what he's being charged for fell within the scope of his official duties as president. Judge Chutkan rejected that forcefully. She said we don't have kings in the country. Can't be.

Now Donald Trump is in the court of appeals, which is the middle layer, one level below the U.S. Supreme Court but above the district court. What's going to happen today is a three judge panel, selected at random from the D.C. Circuit, will be asking a series of questions, really barraging the lawyer. The lawyers are going to get up there one at a time -- first Donald Trump's lawyer's going to get up because he's the one who's appealing -- and he will make his argument, and then the questions will just come rapid fire. And you're trained when you do these arguments, as soon as you see one of the judges start to ask a question, take an intake of breath, you shut down what you're saying, you listen and you answer that question. So, that's going to happen.

It's scheduled for 20 minutes, but these courts of appeals will take as long as they want. Sometimes less, but I think in this case it will be more. Twenty minutes then for Jack Smith's team. It won't be Jack Smith himself. It will be a lawyer from his team. And then Trump's team will get back up for a rebuttal. We're not going to get a ruling today, by the way. That will come in a few weeks.

COATES: And, by the way, it's important that he mentioned that it's at random. These three judges are not as if you had to petition to get them in particular. It kind of is the luck of the draw of who you're actually going to get. We know a little bit about these judges who were the - going to hear the case. But why is that so important to consider this is a three judge panel, not the full circuit, not at all, but these three are who you get?

TEMIDAYO AGANGA-WILLIAMS, PARTNER, SELENDY GAY EISBERG: Well, one, I think when you have three judge, you are thinking about a wider range of how to be appealing in the arguments, right? If you have one judge, you're thinking about that judge's history, that judge's experience. Here you have to be more expansive in how you approach your case. That's going to be super important here.

And what I'll be looking for here, as Elie said, is what kind of questions are these judges asking, because that's going to be the insight we get into what they're focused on. Are they thinking about jurisdictional questions, are they thinking about the role of the president as a potential officer under the Constitution, are they think about the question itself of insurrection. And I think those questions will be the first taste we have of what a potential opinion would look like.

And I agree we're not going to get an opinion today, but I suspect we may get one incredibly quickly. This - these judges will be moving incredibly fast. It may not seem fast for those at home, but for an appellate court we're moving at lightning speed. And I guarantee you they already have been drafting their opinions over the Christmas break, and that's going to come out soon.

[09:05:04]

COLLINS: And Jack Smith wants them to move quickly here. He's made the special request to ask them to - to do so.

And I think what's important here is who's going to be in the room. It's not just these judges.

COATES: Right.

COLLINS: It's not just the attorneys and the prosecutors. Donald Trump himself will also be in the room today.

And for more on that I want to bring in CNN's chief legal affairs correspondent Paula Reid, who is outside the courthouse in Washington, D.C.

And, Paula, I think what's important to remind everyone here is, this is not something that Donald Trump has to attend. He is choosing to attend this. So, what do we expect to see when Donald Trump arrives at that courthouse behind you?

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: Well, Kaitlan, it's a rainy, windy day here in Washington. And this is a federal courthouse. And it's hard to see much at all. He's likely going to go into a garage where we won't see him at all.

Of course, these proceedings are not televised. We will get some audio of the judge's questions, but we won't be able to see what's going on inside the court, though there will be a sketch artist, so it could be at the end of the day really all we see of Trump during these proceedings is a single sketch from the sketch artist.

So, again, as you point out, it's a conscious choice he's making to show up here today.

And these are not your usual proceedings. As you've been discussing with the panel, this is an oral appellate argument. So, one lawyer at a time gets up before a three judge panel. They come prepared with an argument. Thought pretty much as soon as they start talking, they're peppered with questions from these judges. There are no witnesses. There is nothing for Trump to do today in this courtroom. But we'll be listening to these judges, as will former President

Trump. It's unclear exactly what he wants to accomplish with his presence here today. It's unusual to attend an appellate oral argument, especially when he has so many competing interests on the campaign trail.

But really, in addition to the larger constitutional questions that are being litigated today, the big strategy here is to at least get the election subversion case, the federal trial that was supposed to start here in just a few weeks, delayed. So, in terms of winning on the merits, as you experts have discussed, as former member's of Trump's team have said, they're not sure he's really going to win on the constitutional question here, but if he can just continue to get this case delayed, that in and of itself is a win for him.

COLLINS: All right, Paula Reid, outside the courthouse in Washington, thank you.

And, I mean, I just think what we were talking about this morning, the fact that -- Paula makes a great point there, it's not necessarily the outcome that even really matters to Trump here.

COATES: Right.

COLLINS: But it is something that's never been asked or answered before, this question.

COATES: In a way that's a good thing, right? We don't want to have every single year the question is, can this president have committed this crime and be immune. We don't want that to happen in this country.

But the fact that we are in a kind of wild, wild west where we're going to have a court of appeals decide a question about whether we've got absolute immunity for a president of the United States - I mean, remember, he used to talk about it. You know this so well. I could shoot someone on Fifth Avenue and be fine. The question now is, how about Pennsylvania Avenue, where the White House is, is that good enough here.

But, remember, this is so important to think about. We're not going to hear this court decide whether he committed and engaged in insurrection.

HONIG: Right.

COATES: This is not a fact-finding mission. This is a legal argument, do we have a king or not.

HONIG: Well, we've said before, Donald Trump makes all the hypotheticals come to life. And we see that today.

I mean it's important to establish, I think, what we do and o not know legally as we head into this. We do know there is such a thing as civil immunity, meaning a president or any former official, federal prosecutor, like I was, Temidayo was at one point, any federal official cannot be sued for something that's within the scope of the job. The way it was explained to me as a federal prosecutor is, if someone sues you because you indicted them, because you subpoenaed them, you're covered. That's part of the job. If you go out on the weekend and get in a fight at a bar, not covered. That's outside the scope of the job.

COATES: And we do that because we don't want people to be deterred from doing the actual official conduct.

HONIG: It's a great point. It's not because we're trying to help out officials, it's because we don't want our officials sitting there worrying, boy, if I do something that offends somebody am I going to get sued.

Now, what we don't know is, is there even such thing as criminal immunity at all. It's been discussed but never decided by the Supreme Court.

So, there's really two questions today that Donald Trump has to win on, one, is there such thing as criminal immunity. If yes, then, two, was Donald Trump within the scope of the presidency in what he did? He's got to prevail on both of those. But like you said, Laura, this is really new ground for us.

COATES: But, Kaitlan, you know, you mentioned the optics. There's a reason he's at this particular appellate argument. He was present voluntarily, right, in New York City for Letitia James. He wants to be seen as confronting this issue. That's so important to him.

BOLDUAN: Yes, it's a purely political, calculated decision that Trump is making here. And I think what's interesting, when I was talking to some people in Trump's legal orbit yesterday about this is, the judges, though, are not going to be interested in the political aspect of this. I mean they are going to be interested in asking questions, skeptical questions of both sides, as Laura pointed out earlier, of what the actual arguments are from the prosecutors on Jack Smith's team, but also from Trump's legal team, not the political points that Trump is trying to make.

AGANGA-WILLIAMS: You know, that's correct. And what folks have to understand is that federal court is an especially somber place.

[09:10:04]

More than state court. More than other lower courts. That's especially true at the appellate level. It's especially true at the D.C. Circuit, which is wildly considered the second most powerful court after the Supreme Court.

I think the danger Trump's lawyers have here is that if they start performing for that audience of one, that is going to not be received well at all. This is not a place where you engage in theatrics. It's not a place where you engage in that kind of - the boisterous Trump way of argument at all. So, we've seen them in other courtrooms take on that more aggressive, more performative tone. And I think a panel here in a D.C. Circuit will not be receptive to that and it will undercut the chance of any positive outcome here I think with the Trump team.

COATES: What a great point about this. I mean the --- there are some pretty powerful alum from this circuit court of appeals that you can mention and you think about some of the Supreme Court justices. In fact, at least one, Judge Childs, was on a short list for a potential Supreme Court nomination to replace the exiting Justice Breyer. And Judge Pan, she was a trial - I mean I've been before Judge Pan as a trial attorney. Let me tell you, there was no exchange of the pleasantries, there was no - I mean she was obviously very professional, but there is no moment where you're going to be like, let's just shoot the breeze for a second. She wants to know exactly why you're here and what you're doing about it. That's just two of the three very serious judges.

But that also goes to why Donald Trump is there. I mean he probably know he can't talk in this. He's not going to have outbursts. Even in New York he had to be on the courthouse steps. But unlike what happened in New York, when we saw James, the A.G. here in New York, do something different, we're not going to hear the lawyers on the courthouse steps.

HONIG: Oh, no. There's going to be none of that here. Donald Trump will be a spectator. He'll be in - in the - probably the front row of the gallery. That's it. He won't be in the witness box. He won't be testifying.

COATES: Which might drive him absolutely crazy, by the way.

HONIG: It might be - it might be tough. It might be tough for him. He's allowed to talk outside of court. I don't know what he will given what Paula just said to us.

One thing that I think is important in the tone of this argument and Trump's overall legal approach is, there's been a shift. In the early days of all of this, Donald Trump had a different team of lawyers. They were very aggressive, very political, throwing things out there that you would never really put in a brief because they're just so over the top attacking. Now there's been a shift. And if you look at the briefs in this case -

COLLINS: Elie, can I just -

HONIG: Yes, sure.

COLLINS: Can we just note - I want you to continue that point, but I just want people to know that we do believe this is the former president actually arriving. He's been staying at his golf course in Virginia. We do believe this is him and his legal team arriving at the court. Just to show people.

COATES: And notice he's going into a secluded area - I mean, you know, an area that's not going to have a lot of cameras available to be there.

COLLINS: Yes.

HONIG: He made good time.

If you look at this brief, it is by and large a very serious, substantive brief. There is a little bit of a hyperbole that sneaks in there where they say, well, this is all a Joe Biden setup. That's ridiculous. That I would have taken out of it. But by and large they are taking on the issues that they'll be asked about today.

COATES: Well, you know, Kaitlan, it's so important to kind of walk through this charge. I mean the actual substance of what they're being asked to decide today. It's not just the idea of, was there presidential immunity. The defense, they're trying to say, and Trump's team is trying to suggest, he's got double jeopardy that already has attached here. That's a really important point we're going to hear a lot about today, aside from immunity. He is suggesting that because he's been impeached, you were part of the January 6th investigative committee, that because he was impeached by Congress he can't be prosecuted criminally outside of that context.

What do you make of that, particularly given your experience?

AGANGA-WILLIAMS: Well, I think most serious legal scholars have, you know, discounted that argument. I think it's telling that we haven't even reached it until now because I think most folks do not see that as an argument that's going to go anywhere. This is really going to be about the scope of presidential immunity.

COATES: But play devil's advocate for a second.

AGANGA-WILLIAMS: Yes.

COATES: Because we're going to hear arguments that they will raise about, because this has already happened, because there has been impeachment, what will they be suggesting to this court that will likely be shot down? What will they be suggesting?

AGANGA-WILLIAMS: I think what they'll be saying is that the -- even though the charges are not similar, that they are similar enough, right, because what's a key for double jeopardy is that you've been charged for the same offense, you've had your day in court and you were acquitted. You shouldn't have to face those charges again.

So, even though he was not charged with this -- what would be these same criminal charges that Jack Smith has brought, his lawyers are going to say, these are effectively the same thing. You had your shot. You don't get to come back again and try to get me. And they'll basically say the Constitution lays out this process of how to go after a president for such conduct. And you did it and you failed and you don't get to try twice. I think arguments are going to fail, but I think those are the contours of where they're going with this.

HONIG: Temidayo was being nice before when he said most people have sort of dismissed this one. This second argument on impeachment and double jeopardy to me is a stone-cold loser. I wouldn't even have included it. I mean it's - it's not even apples and oranges. It's more different than that. First of all, there's different charges. The allegations that were made in the impeachment are different. Jack Smith has charged obstruction and conspiracy. The impeachment was based on essentially insurrection.

[09:15:00]

So, they're missing each other on that.

Second of all, it's not two criminal proceedings. The impeachment is a political proceeding with vastly different procedures. There's no chance he succeeds on that argument.

COLLINS: Yes, and that was something that even Senator Mitch McConnell noted at the time when he voted to acquit.

HONIG: Right.

COLLINS: HE said, the courts would take care of Donald Trump.

COATES: Yes.

COLLINS: Elie, Tem, we have a lot more to cover as we are going to be watching and listening to all of this. It's actually going to be really fascinating, so stick around with us because we do have a lot more to come.

As you just saw, former President Trump arriving at that D.C. federal court. We do anticipate that the appeals hearing is going to begin any moment. We're going to have it live here on CNN, s So stick with us. We'll be back in just a moment.

(COMMERCIAL BREAK)

[09:20:07]

COATES: Moments ago former President Donald Trump arrived at the Washington, D.C., federal courthouse where his lawyers will try to convince a panel of judges that he can't be tried for crimes he may have committed while in office.

This is a push for presidential immunity, but it has major implications, not just for Trump's legal future, but also his political one as well, and for the country, as he appears poised to potentially become the Republican nominee for president. The voting is going to start next week.

So with us here right now, CNN political commentator and PBS host, Margaret Hoover, and CNN's senior political analyst and anchor, John Avlon.

John, I mean, I just wonder how you're looking at this in the sense of how much of what they decide here, even if Trump ultimately loses on the merits, if this - if he loses here or if it goes to the Supreme Court and he loses on the merits, how much of the timing here really could shape what the election itself looks like? JOHN AVLON, CNN SENIOR POLITICAL ANALYST AND ANCHOR: Well, I think,

obviously, that's Donald Trump's bet. He seems -- he believes he will benefit from this attention. He will fundraise off it. He will say, I'm not being prosecuted, I'm being persecuted and therefore rally around me, particularly in the Republican base.

I think the important thing to remember, though, is, this is another reminder that politics really is history in the present tense. This is history's stakes. This is a test in the court of where presidents have complete immunity, or whether they're ultimately held under account under the law as any other person once they leave office. And those stakes just couldn't be higher for our democracy, even beyond Donald Trump's delay attempts and attempts to profit off this politically.

COATES: That's an important point, Margaret, because we often think about, you know, the minutia. We think about, well, this is about Donald Trump, this is about Joe Biden, this is about right now, 2024. But precedent is established and can last for decades. It can shape our democracy in so many ways. We know this quite well. The stakes are unbelievably high today.

MARGARET HOOVER, CNN POLITICAL COMMENTATOR: Absolutely. I mean it's interesting that this question has never been tested before the courts, but also it's interesting there's never been a president who's refused to leave - who has made it so difficult to leave office and have a peaceful transition of power. And that's what's at the core of the question here.

And even though these are precedent setting, incredibly important legal questions that are coming before the courts, this is also a political day for Donald Trump. I mean they - like, let's not just forget that this is a - it's not just a political stunt, this is an attempt to rally his base and rally the Republican primary base across the country towards this notion that he's a victim and, you know, it is no mistake that this is one week before the Iowa caucuses.

COLLINS: Well, also, could -- Trump posted this video overnight and it echoes something that he posed on Truth Social yesterday, talking about essentially what he believes the argument here is about, that if he can be prosecuted, even though he's arguing he can't be prosecuted, then Joe Biden can as well. This is what he said.

(BEGIN VIDEO CLIP)

DONALD TRUMP, FORMER U.S. PRESIDENT: I mean Joe would be ripe for indictment. So, you're saying that Trump shouldn't get immunity, but Joe Biden would? I didn't do anything like he did. I ran a great country.

(END VIDEO CLIP)

COLLINS: I mean it speaks to how he's using this.

AVLON: Yes.

COLLINS: And that's, I think, so important today what he's doing. This is a political calculation. And it's his right to make that choice, to go to court, as he's going today, but it's a political calculation that he's making here. And it also kind of seems to undercut his argument that he has presidential immunity, he can't be prosecuted for anything he did in office, but let's indict Joe Biden was his argument.

AVLON: Well, these are threats, right? He's threatening. He's saying that, look, if you indict me, and I'm elected, I'm indicting - I'm indicting Joe Biden. And this is what he does.

COATES: But it's also a, be careful what you wish for -

AVLON: Yes, but -

COATES: Because if you want us to not have immunity -- he's making more - maybe it's a threat directed, but it's also a, be careful what you wish for.

AVLON: Well, but I think that elevates it, right? I mean, Donald Trump, at the end of the day, is operating out of short-term self- interest, right? A lot of the legal arguments he's making, you've acknowledged, don't really carry a lot of water, saying impeachment is the same thing as a criminal trial, saying that presidents are - aren't covered by the 14th Amendment. I mean, you know, legal scholars can debate that. But I think there are a lot of fundamental problems if you look at the original intent around - around this. This is a threat.

HOOVER: Can we just get out of the legalese? Let's just be really, really clear here.

AVLON: Ha, OK.

HOOVER: There is nowhere in a president's official duties that sending back electoral ballots and slates to the states, in order for him to further his extension of power, is part of your job as president, OK.

AVLON: Right.

HOOVER: That's what he's arguing. And that's on its face fundamentally, clearly not true and believable to regular Americans.

AVLON: Yes. Yes.

HOOVER: OK. So, I think we need to like simply this and be -

AVLON: I think that's a - that's a very fair point. I'm happy to be rebuked by that on that point.

COATES: I mean, happy wife, happy life. That's why you're OK (ph). Hold on a second. Margaret Hoover got the last word there. Sorry, John Avlon.

AVLON: Fair.

COATES: Both of you, stay with us because any moment now we anticipate the appeals hearing to begin on time. What's the critical question? How far did Donald Trump's presidential immunity really extend? We'll bring it all to you live. Some legalese, some not, with us. Stay with us.

(COMMERCIAL BREAK)

[09:29:33]

COATES: It's a major day and we are watching the developments in Washington, D.C., where Donald Trump has arrived at the federal courthouse moments ago.

Right now oral arguments will start and get underway before a three judge appellate panel on whether the former president can be held criminally response for his efforts to overturn his 2020 election loss.

COLLINS: Yes, no small question. And we know what Trump has been claiming. His lawyers have just entered the courtroom. He has been arguing that he has absolute immunity, insisting that any actions that he took while in office constitute official acts.

[09:30:05]

The district judge overseeing the case has rejected had, but now it is up to this appellate panel.