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Senator Bob Menendez Speaks Out on Senate Floor; Federal Judges Hear Arguments on Trump Immunity Claim. Aired 11-11:30a ET

Aired January 09, 2024 - 11:00   ET

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

[11:00:48]

LAURA COATES, CNN HOST: The appeals court's hearing on Donald Trump's immunity claim, it has now just wrapped up, the three-judge appellate panel facing this big question: Can the former president be held criminally responsible for actions that he took while in office to overturn his 2020 election loss?

KAITLAN COLLINS, CNN HOST: And we heard a remarkable argument from Trump's team, who kicked off this hearing arguing that prosecuting a former president would open a Pandora's box, as John Sauer, his attorney, insisted that Trump was working in his official capacity for what is alleged in this indictment by Jack Smith, the special counsel's office pushing back on that.

(BEGIN AUDIO CLIP)

JAMES PEARCE, ASSISTANT SPECIAL COUNSEL: This notion that we're all of a sudden going to see a floodgate, I think the careful investigations in the Clinton era didn't result in any charges.

The fact that this investigation did doesn't reflect that we are going to see a sea change of vindictive tit for tat prosecutions in the future. I think it reflects the fundamentally unprecedented nature of the criminal charges here.

(END AUDIO CLIP)

COATES: CNN's Evan Perez joins us now.

Evan, you were inside of that courtroom. I have got to understand, what were your key takeaways? What was the climate like in the actual -- in the atmosphere in that room? What did you see?

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Well, once the former president finally got into the courthouse, the courtroom, that's when all the noise in the room stopped. Everybody obviously turned their attention to the former president.

He was very subdued. He walked in, kind of almost like a saunter, and took his seat at the defense table with -- alongside his lawyer, John Sauer.

One of the things that was noteworthy is that, unlike some of the previous times that we have seen him in court, he had Boris Epshteyn in his corner. He had a couple of rows behind where the former president was sitting. Also, Walt Nauta was sitting there with the former president, again, something that we don't normally see in these type of -- in these cases.

And so he was subdued for most of it while Jack Smith just sat about 20 feet away from him. They didn't really look at each other, unlike some of the previous times that they have been in court together. This is obviously a proceeding where the former president didn't have to attend. He chose to attend this and obviously was paying very rapt attention.

He was very focused on the arguments, certainly the beginning arguments, by his attorney, John Sauer. When the government began its presentation is when the former president began -- you saw a lot more activity from him. He was leaning forward. He was taking notes. He was passing notes to John Sauer.

He was very, very attentive when a couple of the judges spoke, when the -- Judge Childs was asking questions. He seemed very, very focused on her. One of the things that I found -- what I found really interesting is that there are times where he seemed very, very much trying to portray how much he agreed with his side of the case being presented.

He looked over. He nodded strongly when Sauer was talking about how the fact that the former president was not -- there was no allegation against him that any of the crimes that are being alleged against him happened outside of office. They all happened while he was sitting in office.

So he nodded very, very strongly to that argument from John Sauer. And, again, the room was quite focused on the former president. Even James Pearce, who was the government attorney, the attorney -- lawyer for the Justice Department who was making the presentation, his parents were sitting a couple rows back in the courtroom.

Apparently they have come to some of the previous arguments, appellate court arguments, including the one that Pearce argued on the gag order just a couple of months ago. So, everybody in the room waited, of course, until the judges walked out, and then the former president stood up and walked out slowly outside of the room.

[11:05:09]

Obviously, this is a very momentous court proceeding today. Obviously, the constitutional questions loom very, very large, not only over this trial, but also over future presidents. And so I certainly think that he seemed to be very animated when Pearce was talking about the idea that there would be floodgates.

The one sound that you just played just a minute ago, when Pearce was talking about he doesn't believe that there would be a tit for tat, the former president was firmly taking notes and again handing them out to John Sauer, his attorneys. It was a fascinating, fascinating couple hours there. I thought it

might go even longer, based on the previous proceeding, but it was absolutely fascinating to watch the former president sitting there watching his fate essentially being decided by this court.

COATES: Well, first, Evan, the mom in me is not going to begrudge any parent for showing up for their kids' event, whether it's a sporting event or you are arguing a consequential matter in the D.C. Circuit Court. Kudos to those parents.

PEREZ: Right.

COATES: But I'm really curious about the note-passing here. You're saying that he was passing notes to his attorney who was arguing.

PEREZ: Yes.

COATES: Were there particular moments that you saw from President Trump particularly animated and invested in handing those notes over? Were there certain argument times, immunity, for example, or when he was talking about official acts?

What were those moments?

PEREZ: Yes.

Well, yes, absolutely. He -- the idea that -- for example, when Judge Pan was asking about this idea that he has to be impeached, that he has to be convicted first, Trump was taking furious notes during that proceeding, during that part of it.

Again, when Pearce was making the argument about that he doesn't expect just because the former president is being prosecuted in this case, that in the future that there will be similar prosecutions, again, Trump furiously was taking notes. He leaned over to talk to his lawyer when, for example, Judge Henderson raised the idea that the take care clause that you guys were just discussing just a few minutes ago, where the idea that the former president, when he took office, obviously, he took an oath to take care and to make sure that the laws are executed in this country.

And she said it was paradoxical that he then would be immune from being prosecuted if he broke those very laws. He leaned over and spoke to his attorneys again during that bit of questioning. So, clearly, he was listening very, very closely. Everybody in the room was eyes focused on him obviously to see what his reactions would be.

Very unusual, obviously, to have a defendant coming to one of these proceedings.

And in reference to Mr. Pearce's mom, I asked her, I said: "Why are you here today?" And she said: "You couldn't keep me away from here today."

(LAUGHTER)

PEREZ: So, mom, very, very much, very much invested in the proceedings here today.

COATES: Moms everywhere are like, you got that right.

Thank you very much.

PEREZ: Right. Exactly.

COLLINS: I'm so glad you asked that question about the notes, though, because that also caught my interest when Evan said that Trump was passing notes to his attorney.

COATES: Yes.

COLLINS: But, Evan, there were a few moments where the judges here had to repeatedly follow up with their questions or rephrase them for Trump's attorneys.

PEREZ: Right.

COLLINS: I mean, what did they -- what were their facial expressions? What was their kind of body language during this?

PEREZ: Well, certainly, I think they were trying to hew very close to their arguments. They were trying to make sure that they didn't stray very, very far from the arguments.

One of the things the government points out is that Trump and his legal team, they have evolved a little bit in some of their arguments. And so, certainly, I think, certainly for Mr. Sauer, as he -- as soon as he hit the podium, he started getting questions from Judge Childs, from Judge Henderson.

So, they -- he didn't even have a minute really to start doing his presentation. It's always very fascinating to watch the lawyers who come with -- who prepare for days and days and weeks, right, to do this presentation. And then they come in here and it's rapid fire questions from these judges, who don't really have that much patience and don't really pay attention to the clock either.

And so that was, I think, always unnerving for any lawyer, but these guys seem to be rolling with the punches.

COATES: There was a part, I mean, during the conversation, and it was Judge Pan, and she asked about a quote from Donald Trump in the congressional record. Let's put it on the screen.

She says: "Sorry, but there is a quote in the congressional record in which your client said, through counsel, no former officeholder is immune from investigation or prosecution."

[11:10:07]

PEREZ: Right.

COATES: I'm wondering what Donald Trump was doing when receipts were provided in the courtroom. PEREZ: Those were one of the -- that was one of the few moments where

I saw him just look -- stare -- stare straight at the judge. He didn't really have much of a physical reaction.

There are times where he purses his lips. It's one of his mannerisms that we always observe, especially when he doesn't like something. He purses his lips and looks straight ahead. And that was one of those moments, very characteristic of the former president.

You know. You know when there's something being said that he doesn't like. And that's one of the tells.

COATES: And I'm just guessing Jack Smith was pretty stoic throughout.

PEREZ: Right. Jack Smith was sitting just a couple of rows behind Pearce and the government table. He came in with about 20 -- a very large entourage, about 20 people, various Justice Department lawyers, other staffers, FBI people who are working on this part of this investigation.

So he walks in. And for a while, as we were waiting for the proceedings to begin, Smith was looking around at some of the portraits. As you know, that one room, that one courtroom has portraits of some of the judges who have sat on this appeals court in the past.

And so he sort of familiarized himself with some of the people on the walls there. He did stop to talk to the Pearces, to the mom and dad who were sitting just a few rows back. So he had a little chat with them, but stoic, didn't look at the president, the former president, unlike previous times, where we saw them sort of exchange glances very, very shortly, very briefly.

That didn't seem to happen today, not that I could see.

COLLINS: Evan Perez, from what you did see, it was quite a lot, quite interesting. Thank you for sharing that with us.

And to break down what we heard from the actual arguments that were being made, we have our legal panel back here with us.

Joining us now is CNN senior legal analyst and former assistant U.S. attorney for the Southern District of New York Elie Honig and CNN legal analyst and former chief assistant district attorney for the Manhattan DA's office, Karen Friedman Agnifilo.

I'm so glad to have you here joining us.

And just on what Evan was talking about there at the end and Laura about this sense that Trump's trial attorney is now being confronted with what previous attorneys have argued, which was, during Trump's past impeachments, they argued this is something that could be taken care of in the courts, saying that presidents could be prosecuted.

They were very much saying that they could not today, unless that they have been convicted by the Senate. KAREN FRIEDMAN AGNIFILO, CNN LEGAL ANALYST: Yes, clearly Trump's

prior arguments in other forums are coming back to haunt him.

And he -- judges are listening to each other, right? They're seeing what's happening in other cases or in other forums. And you can't be inconsistent and disingenuous, especially when you speak to the court.

What I thought was excellent today, what they really did a good job of was narrowing the issues, because there were several issues that were outstanding going into today's oral argument. Number one, do presidents -- are they immune from criminal prosecution generally? OK, number one.

Number two, could double jeopardy apply because he was impeached by the House, but he was acquitted by the Senate? Number three, does the appellate court even have jurisdiction to hear it at all right now? Because, normally, you have to wait until after you're convicted.

And, number four, do you have to be impeached and then convicted in order to be prosecuted? That's the impeachment judgment clause. And what I thought the appellate court did a really excellent job here was narrowing those issues down.

And, at the end, Judge Pan got Mr. Sauer, who represents Trump, to concede that there is no absolute immunity here, that if -- what she said was that if Trump is impeached and then convicted by the Senate, then would prosecution be entirely proper under the impeachment judgment clause on same or related conduct?

Now, that has to do with the double jeopardy. So, by getting him to say yes to this question, she got him to concede there is no double jeopardy, number one, and, number two, there is no absolute presidential immunity.

So the only remaining issues here are, does the impeachment judgment clause require a conviction first in order to do this? They could address this outer perimeter issue as well. That's one other area where they can fine-tune this immunity question of ministerial versus discretionary acts.

But, really, they narrowed the issues, I thought, beautifully during this argument.

COATES: What you said, there's a point there that I'm so glad you raised it, because we were all chattering about it in the middle of the oral argument, when he did not want -- this is the counsel for Trump.

[11:15:09]

He did not want the immunity questions to be resolved after a trial, which is normal. And you go through the whole criminal trial and then you never really sort of lose this ability to make and raise this claim on appeal.

Elie, your ears perked up immediately. You said, this is where it is. This is the crux of the issue.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: This is all about the calendar and the timing, which is so important.

OK. Ordinarily, a criminal defendant, like Donald Trump is now, does not get to appeal, does not get to have this argument until after the trial, after there's been a conviction, after there's been sentencing.

COATES: Which feels odd to people.

HONIG: Yes. You have to go through the whole thing and then you get to attack it, except in very narrow circumstances, where a defendant is allowed to take what we call an interlocutory appeal, meaning an appeal before your trial.

Now, both, interestingly, Donald Trump's team and Jack Smith's team agree, yes, he's allowed to take an interlocutory appeal. This is the kind of case where you can do that.

COLLINS: So we got to pause. I want to hear the rest of this legal analysis.

But we are hearing from Democratic Senator Bob Menendez right now on the Senate floor about the latest indictment against him, which is now a superseding indictment. Let's listen.

(JOINED IN PROGRESS)

SEN. ROBERT MENENDEZ (D-NJ): ... the government since the beginning of this process, and, for that, at least a year prior to the bringing of this indictment, which, therefore, begs the question, why did the government not proceed with all of these accusations from the beginning?

The answer is clear to me. By filing three indictments, one in late September, a second one a few weeks later in mid-October, and a third one just last week in early January, it allows the government to keep the sensational story in the press, it poisons the jury pool, and it seeks to convict me in the court of public opinion.

In so doing, the government's tactics harm not just me, but each of you, my colleagues, the political establishment, and, most importantly, the electorate of New Jersey.

The sensationalized allegations are now creating a rising call for my resignation, despite my innocence, and before a single piece of evidence has even been introduced in a court of law. The United States attorney's office has engaged not in a prosecution, but a persecution.

They seek a victory, not justice. We have seen this play out with other prosecutions of public officers. Remember what happened to Senator Ted Stevens or Governor Bob McDonnell.

There are numerous other examples. It's an unfortunate reality, but prosecutors sometimes shoot first before they even know all the facts. It would be a shame if this venerable body does the same. So, having set the stage for why this process has unfolded this way,

let me deal with some of the issues, starting with the latest accusation. I have received nothing, absolutely nothing, from the government of Qatar or on behalf of the government of Qatar to promote their image or their issues.

The government's principal allegation of what I supposedly did for Qatar was to support a Senate resolution. This resolution was sponsored and introduced by Senator Graham and co-sponsored by 11 other bipartisan senators, posted on the Senate Foreign Relations Committee agenda and passed by voice vote.

Now, what was that resolution about? The resolution sponsored by Senator Graham and 12 of our colleagues on both sides of the aisle thanked the Qatari government for assisting the United States military in evacuating American citizens and Afghan refugees from Taliban rule. How nefarious is that?

Then they referenced some press release I made. Well, the press release says in one sentence: "I am glad to see our friends and allies in Qatar be moral exemplars by accepting Afghans ultimately seeking safe haven in the United States after being forced to escape for their lives."

That's the one thing it says about Qatar. The rest of it is a call for international cooperation to help protect Afghan civil society members, journalists and others at risk of Taliban rule, something I heard many members of the Senate at the time speak out for.

Qatar has played important roles in hosting our U.S. Al Udeid Air Force Base, the largest in the Middle East, in responding to the administration's call to supply natural gas to Europe during the Ukrainian conflict with Russia, and, yes, facilitating and receiving Afghan refugees that the United States government was seeking to evacuate, among other initiatives.

[11:20:08]

And, most recently, they played a role...

COLLINS: And you are listening to Senator Bob Menendez there speaking on the Senate floor after a prosecutor has unveiled a superseding indictment against him following on charges already that he had used his position as a sitting senator, and I should note the chair formerly of the Foreign Relations Committee in the Senate, improperly.

CNN's Lauren Fox is tracking these comments.

Lauren Fox, I think it's notable that one of the things the senator came out that Laura and I both kind of looked at each other when he said that was that he asked why the Justice Department had not brought all of these charges against him at a sooner date.

LAUREN FOX, CNN CONGRESSIONAL CORRESPONDENT: Yes, and his argument, Kaitlan, was essentially that this was a maneuver by the government in order to keep this story in the spotlight. Of course, as you know, the Justice Department doesn't always bring

all of the charges at once. It's not unusual for a superseding indictment to come later. That is what happened in the case of Senator Bob Menendez, but he is furiously defending himself right now on the Senate floor, showing no signs up to this point that he is expected to step aside.

Instead, he is just defending himself. And this is going to come as there are likely going to be more and more calls for him to step aside. And I think that that is really notable at this moment right now, given the fact that we have a number of his colleagues who have made it clear that they're uncomfortable with the charges against him, that they believe that he no longer should be a sitting U.S. Senator.

But, ultimately, that is the decision that is up to Senator Bob Menendez. He's making it clear this morning that nothing in this superseding indictment is changing his belief that he belongs in the United States Senate.

COLLINS: We will see how his Senate colleagues continue to respond to that.

Lauren Fox on Capitol Hill, thank you for that.

For the rest of you, coming up: Former President Trump is expected to be determined once the votes are cast to be the 2024 Republican presidential nominee, but there are major questions about the political implications of the argument that we heard this morning, his push for presidential immunity.

We will discuss with our legal experts right after a quick break.

(COMMERCIAL BREAK)

[11:26:56]

COATES: This morning, former President Donald Trump was inside of a federal appellate courtroom as his lawyers argued that he should be immune from prosecution for any crimes he may have committed while he was president.

Trump chose to trade the campaign trail for the courtroom with less than a week to go until the Iowa caucuses.

CNN's Alayna Treene joins us here from Washington, D.C., this morning.

Alayna, how is Trump's team balancing what can only be described as a very complicated legal calendar with all that he has to do with his political campaign?

ALAYNA TREENE, CNN POLITICAL REPORTER: Yes, right.

Well, Kaitlan and Laura, I think that this week is a perfect preview of what we should expect in the months to come in the lead-up to the 2024 election of how Donald Trump is trying to juggle both the campaign, but also his legal battles. And, look, I think we should point out that it was Donald Trump's

choice to take himself off the trail to be here in court today for this immunity claim argument. It's something that he cares deeply about. And he's choosing to show up.

And I think, if you look at the rest of the week, I just want to point out his schedule. I think it's, again, a great example of him flitting between the courtroom and the trail. Today, he's obviously in D.C. attending his team's arguments in this immunity claim trial.

But then he's also going to be back in Iowa tomorrow for a FOX News town hall. Then he goes Thursday in a totally different courtroom, a totally different case. He's going to be sitting in on the closing arguments in his New York civil fraud trial, another case that is deeply personal for Donald Trump and kind of strikes to the core of who he is.

And I think, if we take a step back and look at all of this, I think, and, as I said, these are both issues that Donald Trump definitely personally believes in. But there's also a political strategy to this. His team -- and this is according to conversations with many of Donald Trump's advisers -- they think one of the best ways to try and suck all of the oxygen out of the race is to have Donald Trump personally and directly being involved in his legal battles.

They know that this is coming at a time when his rivals are really trying to get as much last-minute traction as they can in the lead-up to Iowa on Monday. And this is a great way to turn all of the attention to the former president and have him do, as we have seen him do many times in the past, try to control the media narrative around a lot of his legal issues.

COATES: Alayna Treene, thank you so much, though I don't know how much more oxygen there might be in the room with six days to go until Iowa.

What do you think?

COLLINS: Yes, TBD. We will see just what that looks like.

We may hear from Trump.

COATES: Yes.

COLLINS: We're waiting to see if he's going to respond. He did not, obviously, speak in court today.

With us now is the Republican strategist Shermichael Singleton and CNN political commentator, Republican strategist and former Trump campaign adviser David Urban, also here, CNN senior political analyst and anchor John Avlon.

David Urban, let me start with you, because I just wonder what you made of the fact that we're seeing Trump obviously in court today, not speaking. He's letting his attorneys do the talking. But he's the one who's posting videos on social media while arguing that he has presidential immunity, but saying that, if he returns to the White House, Joe Biden is going to be the one who is indicted.