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CNN Live Event/Special
Biden Addresses Special Counsel's Finding In Documents Case; Special Counsel Notes Key Differences Between Biden And Trump Handling Of Classified Information Probes; Special Counsel Notes Biden's Memory Lapses In Report On His Handling Of Classified Info; Special Counsel: Biden "Willfully Retained" Classified Information But Will Not Face Charges; Justices Signal They May Side With Trump In Colorado Ballot Dispute; Trump On Supreme Court Ballot Hearing: "A Beautiful Process". Aired 8-9p ET
Aired February 08, 2024 - 20:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[20:00:00]
JOE BIDEN, PRESIDENT OF THE UNITED STATES: The special counsel wrote and I quote: "Several material distinctions between Mr. Trump's case and Mr. Biden's are clear," continuing to quote, "Most notably, after given multiple chances to return classified documents, to avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, he also obstructed justice by enlisting others to destroy evidence and then to lie about it."
"In contrast," it went on to say, "Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations, including his home, sat for a voluntary interview, and in other ways cooperated with the investigation."
I've seen the headlines since the report was released about my willful retention of documents. This assertion is not only misleading, they're just plain wrong.
On Page 215, if you had a chance, I know it's long -- it's a thick document -- on Page 215 in the report of the special counsel, found the exact opposite. Here's what he wrote: There is in fact a shortage of evidence that I willfully retained classified materials related to Afghanistan. On Page 12, the special counsel also wrote for another document, the decision to decline criminal charges was straightforward. The evidence suggests that Mr. Biden did not willfully retain these documents, the evidence also said, I did not willfully retain these documents.
In addition, I know there's some attention paid to some language and report about my recollection of events. There's even reference that I don't remember when my son died. How the hell dare he raise that.
Frankly, when I was asked the question, I thought to myself, it wasn't any of their damn business.
Let me tell you something. Some of you have commented, I wear since the day he died, every single day, the rosary he got from Our Lady of --
Every Memorial Day, we hold a service remembering him, attended by friends and family and the people who loved him. I don't need anyone. I don't need anyone to remind me when he passed away, when he passed away.
The simple truth is, I sat for five -- over two days of events, going back 40 years, at the same time I was managing a national crisis. Their task was to make a decision about whether to move forward with charges in this case, that's their decision to make, that's the counsel's decision to make, that's his job, and they decided not to move forward.
For any extraneous commentary, they don't know what they're talking about. It has no place in this report.
The bottom line is, the matter is now closed. I'm going to continue what I've always focused on, my job of being president of the United States of America.
Thank you and I'll take some questions.
QUESTION: President Biden, something that special counsel said in his report, is that one of the reasons you were not charged is because in his description, you are a well-meaning elderly man with a poor memory.
BIDEN: I'm well-meaning and I'm an elderly man, and I know what the hell I'm doing. I've been president and I put this country back on its feet. I don't need his recommendation.
QUESTION: How bad is your memory? And can you continue as president?
BIDEN: My memory is so bad, I let you speak. That's --
QUESTION: Do you know if your memory has gotten worse, Mr. President?
BIDEN: My memory has not gotten -- my memory is fine. My memory -- take a look at what I've done since I've become president. None of you thought I could pass any of the things I got passed. How'd that happen? No, I guess I just forgot what was going on.
QUESTION: Mr. President --
QUESTION: Voters have concerns about your age. How are you going to dissuade them? And do you fear that this report is only going to fuel further concerns about your age?
BIDEN: Only by some of you.
QUESTION: Mr. President, you are cleared of criminal liability today, Mr. President. Do you take responsibility for at least being careless with classified material.
BIDEN: I take responsibility for not having seen exactly what my staff was doing because it goes in and it goes out. Things that appear in my garage, things that came out of my home, things that were removed, not by me but my staff -- but my staff.
(INCOMPREHENSIBLE CONVERSATION)
QUESTION: Mr. President, for months when you were asked about your age, you would respond with the words "watch me." Well, many American people have been watching and they have expressed concerns about your age --
BIDEN: That is your judgment. That is your judgment.
QUESTION: This is the according to public polling.
BIDEN: That is not the judgments of the press.
QUESTION: They expressed concerns -- they expressed concerns about your mental acuity. They say that you are too old.
Mr. President, in December you told me that you believe there are many other Democrats who could defeat Donald Trump. So why does it have to be you now? What is your answer?
BIDEN: Because I am the most qualified person in this country to be president of the United States and finish the job I started.
(INCOMPREHENSIBLE CONVERSATION)
[20:05:07]
QUESTION: Mr. President, why are you confusing the names of world leaders?
UNIDENTIFIED MALE: Thank you, everyone. Thank you very much.
BIDEN: I did not share classified information. I did not share --
QUESTION: With your ghostwriter.
BIDEN: With my ghostwriter, I did not. I guarantee you, did not.
QUESTION: But the special counsel said that you did --
BIDEN: I did not say that. I did not say that.
QUESTION: But Mr. President, one other --
BIDEN: Let me answer your question.
The fact of the matter is, what I didn't want repeated, I didn't want him to not -- I didn't read it to him was I had written a long memorandum to President Obama, why we should not be in this -- in Afghanistan. And I was -- it was multiple pages.
And so when I was referring to, I said, classified, I should have said it was -- it should be private, because it was a contact between the president and vice president as to what was going on. That's what it is referring to. It was not classified information in that document. That was not classified.
(INCOMPREHENSIBLE CONVERSATION)
UNIDENTIFIED FEMALE: Thank you so much, guys.
QUESTION: He called on me. When you look back at this incident, is there anything you would do differently now? And do you think that a special prosecutor should have been appointed in the first place in both of these cases?
BIDEN: First of all, what I would have done is oversee the transfer of the material that was in my office, in my offices. I should have done that.
If I go back, I didn't have a responsibility to that. That was my staff that was supposed to do that, and they referenced that in the report. And my staff did not do it in a way that, for example, I didn't know how half the boxes got to my garage, until I found out staff gathered them up, put them together and took them to the garage of my home.
And all the stuff that was in my home was in filing cabinets that were either locked or able to be locked. It was in my house. It wasn't out in like in Mar-a-Lago in a public place where -- and none of it was high classified. It didn't have any that red stuff on it, you know what I mean? Around the corners, none of that.
And so I wish I had paid more attention to how the documents were being moved to where -- I thought they would be moved to the Archives. I thought all of those would be moved. That's what I thought.
Now, what was the last part of the question?
QUESTION: Whether a special counsel should have been appointed in this case, and in the case of your rival, former president?
BIDEN: I think a special counsel should have been appointed and the reason I think a special counsel should have been appointed is because I did not want to be in a position that they looked at Trump and weren't going to look at me, just like they looked at the vice president.
And the fact is, they made a firm conclusion. I did not break the law. Period. Thank you all very, very much.
(INCOMPREHENSIBLE CONVERSATION)
BIDEN: The hostage negotiation, look, I'm of the view, as you know, that the conduct of the response in Gaza, in the Gaza Strip has been over the top.
I think that as you know, initially, the president of (Mexico), El Sisi did not want to open up the gate to allow humanitarian material to get in. I talked to him, I convinced him to open the gate. I talked to Bibi to open the gate on the Israeli side. I've been pushing really hard, really hard to get humanitarian assistance into Gaza. There are a lot of innocent people who are starving, a lot of innocent people who are in trouble and dying and it has got to stop. Number one.
Number two, I was also in a position that I'm the guy that made the case that we have to do much more to increase the amount of material going in, including fuel, including other items.
I've been on the phone with the Qataris. I've been on the phone with the Egyptians. I've been on the phone with the Saudis to get as much aid as we possibly can into Gaza.
They're innocent people, and it's the women and children who are also in bad -- they want badly needed help. And so that's what we're pushing, man.
I'm pushing very hard now to deal with this hostage ceasefire because as you know, I've been working tirelessly in this deal. How can I say this without revealing -- to lead to a sustained pause in the fighting and the actions taking place in the Gaza Strip.
And because I think if we can get the delay for that initial delay I think that we would be able to extend that so that we could increase the prospect that this fighting in Gaza changes.
[20:10:14]
There are also in negotiations. You may recall, in the very beginning, right after -- right before Hamas attacked, I was in contact with the Saudis and others to work out a deal where they would recognize Israel's right to exist, let them make them part of the Middle East and recognize them fully, in return for certain things that the United States would commit to do.
The commitment that we were proposed to do, related to two items, I'm not going to go in detail, but one of them was to deal with the protection against their archenemy to the northwest -- northeast, I should say.
The second one, by providing an ammunition and material for them to defend themselves. Coincidentally, that's the timeframe when this broke out.
I have no proof what I'm about to say, but it is not unreasonable to suspect that the Hamas understood what was about to take place and wanted to break it up before it happened.
(INCOMPREHENSIBLE CONVERSATION)
UNIDENTIFIED MALE: Thank you, everybody.
ANDERSON COOPER, CNN HOST, "ANDERSON COOPER: 360": And good evening from New York. I'm Anderson Cooper.
KAITLAN COLLINS, CNN ANCHOR AND CHIEF CORRESPONDENT: And from Washington, I'm Kaitlan Collins.
And you saw there a seething President Biden just wrapping up a press conference dealing with Special Counsel Robert Hur's report on his handling of classified documents where President Biden denied a critical part of that report.
COOPER: And the report clears him legally, but could damage him obviously politically, including a passage which reads and I quote: "Mr. Biden would likely to present himself to a jury as he did during our interview with him as a sympathetic, well-meaning elderly man with a poor memory.
Joining us now is Kate Bedingfield, who served as communications director in the Biden White House; David Axelrod, who worked with then Vice President Biden as senior adviser to President Obama and former Trump communications director, Alyssa Farah Griffin, all three are now CNN political commentators. Also with us, former federal prosecutor and best-selling author, Jeffrey Toobin.
David Axelrod, let me start with you. Is that the press conference the president should have had?
DAVID AXELROD, CNN CHIEF POLITICAL COMMENTATOR: Well, look, I understand the concept of why he had the press conference, because this thing was red hot, and it was out there, and he felt he needed to, and his people felt he needed to respond to it.
Whether the response was adequate or whether it creates more problems, I think is another question. He did contradict elements of the special counsel's report, and that undoubtedly will go on. And then he was quite angry, not just that the release or the characterizations of the special counsel, but of what some of the reporters were asking him.
It is a fact that this is a problem for the president. Anderson, the most damaging things that can happen in politics are things that reinforce a meme that's out there that is hurting you. And the central meme that is hurting the president is this issue of age, it's a big barrier. People don't give him credit for what he's done.
They blame him for everything that happens, and a lot of it has to do with their feelings about his age. So it's not wise to say to a reporter, that's your interpretation. It's not.
There are reams of polling material about this. So I'm not sure. I mean, he was feisty and energetic, I'll say that, but I'm not sure that he saw his problem tonight.
COOPER: Yes, Kate Bedingfield. I'm wondering what you thought. You worked for the president. He did call -- he named Sisi, the president of Egypt, he said it was the president of Mexico. What did you make of that appearance?
KATE BEDINGFIELD, CNN POLITICAL COMMENTATOR: Well, overall, I mean, I agree with David, it was -- he needed to do it. I think it was it was smart for them to recognize that the narrative was not in a great place, that he needed to show some urgency on it.
I think a couple of things that he did that were effective that I heard. So, you know, he took on directly one of the -- kind of pieces, the editorializing that Hur did that was getting traction, the suggestion that he didn't remember the year that his son died. I thought he took that on really effectively. He showed a lot of very genuine emotion. I worked for him for a very long time.
There is no doubt that everything about what he was saying there and feeling there is very real. And so he -- I thought he took that on directly, which was effective.
You know, I think the second thing he did that was effective here is he did show a little swagger and I think that the swagger does kind of combat the age.
I mean, you know, I think you never want to be defensive and you don't want to seem angry or like you're riled up. But you know, I do think in getting a little combative with reporters. He is showing, you know, I've got a lot of energy. I've got a lot -- I've got a lot of life in me, and so I think him doing that was a good thing.
COOPER: Alyssa?
ALYSSA FARAH GRIFFIN, CNN POLITICAL COMMENTATOR: Listen, I don't think the president did himself any favors in that speech. He undercut two of his biggest messages, the adults are back in charge by sort of being dismissive of yes, he was exonerated, he is not going to be convicted or tried for this, but there are some really damning pieces of information in here.
[20:15:11]
He had deliberations around Afghan war plans with him, he spoke to a biographer about classified documents who didn't have clearance. This showed a decent level of reckless mishandling of classified information, and you shouldn't --
COOPER: He said in that he didn't.
GRIFFIN: He said that he didn't. So I think there is a dismissiveness to the seriousness of this. And then on the other hand, they were using this bizarre line to say he stepped away from an international crisis, the biggest attack on our ally, Israel, since the Holocaust to go deal with a self-inflicted investigation by the Department of Justice. How is that supposed to inspire confidence?
I don't know why he went back out. He already said most of this in Virginia today, but this is becoming a five-alarm fire for the White House.
COOPER: Jeff Toobin?
JEFFREY TOOBIN, AUTHOR AND FORMER FEDERAL PROSECUTOR: Mexico? Mexico? Where did that come from? I mean, that's the only thing anyone is going to remember from this. You know, he was exonerated here. And I think it's an easy call that he was exonerated. And I think legally, he's never had a problem with this because the issue of criminal intent was quite clearly absent in the Biden case. And certainly, according to the accusations in the Jack Smith indictment is very much present in the Trump case. I think they are very different and the report even spelled this out.
But Mexico? I mean, politically, how do you explain that?
GRIFFIN: And if I may say, if we weren't living in the Donald Trump era where there's 91 indictments and he willfully mishandled classified documents, and he didn't cooperate with investigations, if this was 10 years ago, this would still be a huge story.
Yes, he was exonerated, but there are details in here that show just a level of recklessness and negligence, and I think it was far worse than what the public expected.
TOOBIN: I don't buy that at all. I mean, you know, classified information is so over -- people over classify so much. Retired people take classified information all the time.
I think legally, this is a non-issue. The issue is Biden's age, and that didn't seem really helpful to me.
COOPER: Kate?
BEDINGFIELD: Well, can I just say, I mean, on this point about Mexico, I mean, he misspoke on the name of the country in the context of a larger answer about what he's doing to try to get humanitarian assistance into Gaza. So was it a perfect answer? Is it great to misspeak? No, it's never great to misspeak.
I promise everybody on this panel, right now has misspoken and said the wrong name or the wrong -- you know the wrong date in a conversation. But, you know, he is explaining in great detail the work that he's doing to try to ease that crisis. And so I don't think that we should lose sight of the fact that he is explaining the work that he is doing as president and get so hung up on one word.
Is it perfect? I'm sure -- does he wish he had said Egypt rather than Mexico? I'm sure he does. But again, I think you know, misstating one word, I don't think we should over crank on that.
COOPER: MJ Lee, you were in the room. I'm wondering what you made of today.
MJ LEE, CNN WHITE HOUSE CORRESPONDENT: Yes, I mean, Anderson, this was a President Biden that seemed pretty ticked off, to be honest with you. He was ticked off about the special counsel report, and particularly coverage of it. He said, even though there's language in there that says he did willfully retain some of these classified documents, he said, there's also language that says contrary and that coverage should reflect that. He mentioned specifically one part of the interview and the report where Robert Hur asked him about the death of his son and when that happened, and he said, how dare he raise that. It's none of your business.
He was also clearly ticked off about the questions that this report and all of the memory issues that this report raises, all of the questions that will get fueled even more about the concerns about his age, the concerns about his mental acuity and he was pretty ticked off when I asked my question to him, which was the fact that, you know, he has been saying for a while when people have raised concerns about his age, "watch me."
Well, a lot of American people who have been watching are making clear that they have concerns about his age, they think he's too old, so why does it have to be him? When I asked that question, he said, you know, this is your opinion, this isn't anybody else's opinion.
Public polling clearly suggests that this is a serious concern that a lot of people have. So, you know, I took this as a president who clearly wanted to sort of get out there, show this sort of fighting side to him. And we know in conversations that we've had with Biden's advisers, people who know him really well, that they think that he does sort of well in that setting when he is sort of shouting, sort of fighting, and fighting back at questions, fighting back at the concerns.
So I just wonder if there was sort of this opportunity that the White House saw to put him in that setting, take some of these difficult questions that they expected that he would have, but I know you were talking about this with your panel.
The fact that in the very press conference, where he was getting asked a lot of questions about his age, his memory issues, he made this important mistake, this notable mistake saying president of Mexico Sisi, that clearly didn't help his cause.
[20:20:09]
But again, I think this was a president that wanted to sort of use his own words to address everything that has happened today. This White House and this president, they know that these questions about age, his memory, his misspeaks, his missteps, they're not going away anytime soon.
COOPER: Yes, and you referenced the moment where he talked about his son in the report that it references his son, the (former) president according to the report couldn't in that moment, remember the date of it. Let's play what the president said tonight.
(BEGIN VIDEO CLIP)
BIDEN: I know there's some attention paid to some language and report about my recollection of events. There's even reference that I don't remember when my son died. How the hell dare he raise that? Frankly, when I was asked the question, I thought to myself, it wasn't any of their damn business.
Let me tell you something, some of you have commented, I wear since the day he died, every single day the rosary he got from Our Lady of -- every Memorial Day, we hold a service remembering him attended by friends and family and the people who loved him.
I don't need anyone -- I don't need anyone to remind me when he passed away.
(END VIDEO CLIP)
COOPER: David Axelrod, you said that you thought that was a moment that was effective, and clearly, obviously very real and emotional.
AXELROD: Oh, absolutely. Look, when I saw the report, honestly, that was the hardest part to comprehend, because anyone who knows Joe Biden, and anyone who has watched Joe Biden knows just how impactful the loss of his son was to him.
And so -- and I thought that was very genuine and very powerful. You know, it's the rest of the stuff that was a little worrisome, and you know, just responding to Kate, it is true, all of us make mistakes at times and misstate things and that is, we're human beings.
The problem is this has become a real thing. Now, every time the president does that, it becomes a story. It becomes the thing, and it goes viral on social media where he is getting pounded on this age issue, particularly among younger people.
So that is a stubborn problem that is an obstacle to get -- you know, in his campaign moving forward.
COOPER: So David, what -- I mean, Kate, as somebody who worked in the White House, I mean, from a campaign standpoint, what does that mean, in terms of putting him out going out there? We heard in our earlier hour, commentators saying that he needs to get out there more people need to see him as being vital. Is that what the campaign is going to look like?
BEDINGFIELD: I think that's what it should look like. I think this -- I think it argues to put him out more, not less. I think the more people see him, the more they hear him, describing what it is he is doing, what the goals he's trying to achieve, the more they see him interacting with people, you know, out on the campaign trail, as the campaign heats up, obviously, some of his best moments are when he is talking one-on-one or in small groups with people where he shows an incredible amount of empathy and understanding for their lives.
So, you know, I think the more he's out there, the better. It also reduces the amount of focus on every -- you know, every individual misspeak. Again, people who essentially speak publicly for a living, of course, they're going to misspeak from time to time.
So, you know, the more he's out showcasing what he's fighting for, what he's achieved. And again, that contrast with Donald Trump. I mean, we sort of in this conversation, we've sort of lost a little bit some of the biggest news from this report today, which was you know, the special counsel talking about the very clear differences between the way Donald Trump essentially obstructed the investigation into his own handling of classified documents, and, you know, willfully mishandled them versus what Biden did, what he said was much more about, essentially unintentional moving of these documents.
So again, I think the more Biden goes out, the more people see him, the more they see his vigor and also his passion for what he's working on the better and again, the less focus on each individual misspeak.
TOOBIN: By the way, it was outrageous that Hur put in some of that stuff in this report. That had no place in it. There is no reason why this report had to be 300 pages. There is no reason why this fairly straightforward case had to be treated this way.
And the -- I mean, this was just like what James Comey did to Hillary Clinton when he supposedly cleared her of the use of classified information, and then talked about how reckless and terrible she was.
[20:25:01]
You know, the job of prosecutors is to put up or shut up. If you have a case, bring your case. If you don't have a case, shut the hell up or say as little as --
COOPER: Do you think he's playing politics?
TOOBIN: I absolutely do.
You know, Merrick Garland picked a Republican prosecutor, someone who worked for Donald Trump. I don't know why Merrick Garland chose him. Democrats seem to have this idea that if they pick Republicans for these tough jobs, they'll get some credit for it. It didn't work with James Comey, appointed by a Democrat; it didn't work with Hur, and I think this was -- there was no case to be brought here.
But Hur did his best to damage Biden politically. Now, unfortunately, for Biden, Biden didn't help himself today in his response, but the idea that this was put in this report, you know that he was elderly -- that didn't belong in that report.
GRIFFIN: Some of it did feel very gratuitous, I do agree with that. But I do caution, I see an emerging narrative from Democrats that this is a partisan investigation by the DOJ. This was a Republican and a Trump appointee, so therefore, he is putting this in.
The message of the Democrats has been we should trust our institutions. We can trust the Department of Justice. It's not weaponized. Republicans are misrepresenting it. And I'm seeing a bit of that coming in response to this report, not from you specifically, but some of the Democrats that are defending Biden tonight.
COOPER: Kate Bedingfield, thank you. David Axelrod, Jeff Toobin, Alyssa Farah Griffin, MJ Lee as well. Let's go back to Kaitlan in DC -- Kaitlan.
COLLINS: Thanks, Anderson.
I'm joined here by Audie Cornish, host of "The Assignment" Podcast; Elie Honig, Ashley Allison, and Doug Heye, all here with us.
Ashley, let me start with you, because let's start on the age thing, because I think what's important here is the context, that this is not just one moment that this happened, where he mixed up Mexico and Egypt as he just did there. This comes with a lot of backdrop and a lot of concerns.
And it's not just one moment in the report either; also in the last week, he has referenced dead European leaders who haven't been alive since the 90s, confusing them with current or almost current leaders. I think it's a bigger picture of the questions.
And clearly the White House felt the need to address that, and that's why they made him come out for these abruptly scheduled remarks tonight.
ASHLEY ALLISON, CNN POLITICAL COMMENTATOR: Yes, a couple of points. First, Joe Biden and Donald Trump are both old Americans and there is nothing that we're going to be able to do in this election cycle to change that narrative, except go directly at it.
And I think I mean, I hear a lot of people tonight saying, I don't think it was a good move. Well, you can't just hide because that's -- we're not in a normal political media atmosphere.
You have -- voters want a fight. Voters want to say, you come at me and you talk about my son. I mean, I remember when my son died, I'm going to tell you something. And so will it be the thing that folks decide in November, whether or not Donald Trump and Joe Biden on age? Probably not because their age actually cancels them out.
It's who was going to stand up for me? Who is going to fight?
There were moments that when he mixed up Mexico and the president of Egypt, but I will argue in his remarks, that young voters, the thing that they were listening to was what he said about Gaza, and that he was -- he went as far as I have ever heard him say, to without saying the word ceasefire, he said, I want an extended pause on hostages. That's what young people are actually looking at, not whether or not he mixed up the name of the president.
They want to know, what are your actual policies, and I'd be curious to see what the polling shows if they get out there with this message, if it gets more traction.
His age isn't going to change, so he has to take it on straight ahead. You can do it with little comedy the way he did it with the Fox reporter, talking about, you know, my biggest memory loss was that I even let you speak because we know that antagonistic behavior. It might not work for all voters, but he can't hide on this. COLLINS: Doug, is that the case? Because when you look at polling, voters way more register that concern of age with Biden than they do with Trump, even though Trump is as Ashley noted just a few years behind him.
DOUG HEYE, REPUBLICAN STRATEGIST: That's very true and you hear that from younger voters. You hear it from older voters. My 90-year-old aunt in Little Silver, New Jersey today said, this guy is too old and we hear this over and over again.
And the problem for Biden is yes, the issue is not going away because Biden is not going away. And every time he presents himself, there's a problem like this.
You know, David Axelrod was praising earlier when he invoked -- when he evoked his son, Beau. Well, I heard was he mentioned the rosary from Our Lady of -- and then he didn't name the church because he got stuck in a moment there.
It reminds me very much of, in 1994, in the fall going to see Frank Sinatra in concert at Merriweather Post, not far from here and one minute "Come Fly With Me" was amazing. A few minutes later, he could barely remember the words from "My Way." And what did we remember? That he couldn't remember the words to "My Way."
This is going to be a recurring problem for Biden. And ultimately, the Biden White House right now is saying three things. One, hey, a lot of people forget things. Two, he was slightly less responsible than Donald Trump. And three, there was a lot going on in the world with Israel, so let's cut him some slack. That's not strong messaging.
COLLINS: Audie, what did you hear in that?
AUDIE CORNISH, CNN ANCHOR AND CORRESPONDENT: I mean, I guess I'm the only one who's not as alarmed because I'm looking at it kind of holistically. This report comes out and this line is in it and they have to address it right away. There's no scenario where you let that sit.
And in terms of media management, you want to be out there because what happened after he had his speech, we played a clip of him saying, how dare you speak about my son that way. We didn't play a clip of him, you know, saying Mexico instead of Egypt.
And I think people take these things in a different way than they used to. They're not sitting home at the couch waiting for him to speak. What they're going to do is see a number of clips. And your point is very well taken, that essentially there's a lot of young people who have been waiting for him to speak in some kind of striking way about Israel and Gaza and specifically him saying, I think they've gone overboard using that kind of language.
That's going to be very striking in the social media space. And also seeing all the reporters barking at him, yelling at him, saying, right, right, right, right. And then he's got quick, fast, snappy. defensive replies. I don't necessarily think again, generationally, they're going to be like, whoa, he was sarcastic. I like a nicer Biden. That hasn't been what they've been asking for.
So I'm just going to put it out there. I know everyone has said that this was bad for a number of reasons, but I would challenge our thinking on this and that people don't take it in the way we do. Nitpicking at it because that's our job.
They're going to get these emotional clips and they're going to walk away with his emotion, which was very intense, almost enraged, use the word seething, and people may hear particular clips and think, maybe it was justifiably so.
COLLINS: Yes. I think some people, you know, covering Biden, you realize he does have a temper. His whole staff, his allies, Kate Bedingfield, I'm sure would acknowledge that, that it is something that is known about him.
CORNISH: But if this report is saying he's Mr. Magoo, he can't come out and be Mr. Magoo. He's got to come out and be punchy and be the guy you're talking about.
COLLINS: This report -- and a key part of this, Elie, and to go back to what Jeffrey Toobin was saying there, the Special Counsel Robert Hur, did have to issue a report. Those are his regulations. It was this lengthy report, which we were expecting. Was that him trying to explain why he didn't charge Biden? Why that was going to be so long? What was your read on what that -- on what he said?
ELIE HONIG, CNN SENIOR LEGAL ANALYST: So first of all, this report is required by the special counsel regulations. And if we want a precedent of somebody issuing a very long special counsel report without recommending a charge, look no further than Robert Mueller, who issued a 400-page special counsel report and did not specifically say, I recommend criminal charges. He was ambiguous and testified.
Let me be clear about this. This is a very close call. I have written and read 1,000 of these documents, they're called prosecution memos. You lay out the facts and you say, here's my recommendation as to charging or not charging. Joe Biden is correct. That Donald Trump's conduct was worse.
But his conduct was still very close to the line. Here are the facts. Joe Biden, established by this report, Joe Biden retained sensitive, classified documents after he left the vice presidency.
CORNISH: Marked classified or?
HONIG: Yes, marked classified, highest level, top secret SCI. They related to our international affairs, to war plans, to foreign relations. He knew it. He knew it. He's on tape. After he's out of the vice presidency saying to his autobiographer, the classified documents are in the basement. He knew it.
COLLINS: But he just denied that. That's --
HONIG: Exactly. So that's -- COLLINS: That was a key part of the report. It's a second sentence in
the report, and he just denied sharing that with the ghostwriter. And I just looked at this closely. They had recorded conversations between Biden and this ghostwriter.
HONIG: Exactly. That is what blew my mind about Joe Biden's statement. Except two major things he just outright it contradicts or is contradicted by, however you look at this, this report. There are two things he said that are completely the opposite of what Robert Hur found.
And who do you believe is up to, I guess, the individual consumer. First, Joe Biden says, I did not act willfully. Willfully just means voluntarily, intentionally. Well, the second sentence of this whole summary says, President Biden willfully retained and disclosed classified materials.
The facts in here show it was willful. He knew. He talked about it. And the second thing he says is, I did not disclose classified documents to my ghostwriter. Page three says that he did that. It says, Mr. Biden shared information, including some classified information from those notebooks with his ghostwriter.
COLLINS: What is the distinction in -- and I want you to make your point, but what's the distinction in what he said about, well, they were at my house because we saw the picture there in the garage. It's that box of documents. And he said Trump's were at Mar-a-Lago, you know, where people come by.
It is true. There was an estimation that I think 40,000, 48,000 guests came through Mar-a-Lago in that time period. How does the Justice Department see and --
HONIG: To me, that is an irrelevant distinction. They're both in unsecured facilities. I didn't understand what he was driving at there. Maybe he was saying there's less foot traffic. That is barely a factor in what my consideration would have been here as a prosecutor.
[20:35:07]
And ultimately, what Robert Hur says in this report is essentially the technical elements of a crime, it appears Robert Hur saying, were met. But what he ends up doing is looking at the soft factors. And you're allowed to do that. You have to do that as a prosecutor.
And he takes into consideration things like, what he says, and maybe this is overstated, maybe not, I'll leave that to the political folks, but he says, essentially, Joe Biden would have created a sympathetic picture in front of a jury. He had memory issues, he had age issues, and that goes into, did he -- was he able to form the mental intent here?
And also, look, the fact that Joe Biden cooperated, it's not a free pass. You can't break the law and then say, well, I cooperated. It cancels what I did before. But you can take that into account as a prosecutor's perfectly appropriate to say from the moment we engage with them, they were cooperative and to give that a plus on the scale.
CORNISH: Is that it has, though, given that the entire framing in terms -- that this is a comparative scandal.
HONIG: Right.
CORNISH: Meaning, it's about what Trump did versus what Biden did --
HONIG: Yes.
CORNISH: -- or Pence did. So fundamentally, the thing that Trump is still in trouble for is not cooperating. So I know in isolation --
HONIG: Right.
CORNISH: -- you're making a very specific argument, but politically, he's going to look out in the public and say, hey, look, fundamentally, I did what was asked, he didn't, that's why he's still in trouble.
HONIG: It's a great question, and you're very much in line with what the special counsel writes in here. No question, Donald Trump's conduct is worse than this. There's no way to spin that any other way.
Robert Hur, the special counsel, goes out of his way in this document to lay out the ways that Donald Trump's conduct is worse. And the primary distinction is exactly that. Joe Biden cooperated and Donald Trump obstructed, and that makes a big difference to prosecutors.
COLLINS: But is this not a -- is this not helpful to Trump's team, though, that is still --
HONIG: It is,
COLLINS: -- handling the -- because we have a former Trump attorney waiting in the --
HONIG: Yes, it's helpful.
COLLINS: Isn't this going to be something that they could potentially use?
HONIG: Let me tell you two ways it's helpful. One is just atmospherically, right? We've all seen a thousand times the photos of documents strewn around the bathroom in the stage of Mar-a-Lago. Now there's similar looking photos in this report.
But here's the technical way that Donald Trump's team is going to use this. Mark my words. Donald Trump's team in the federal Jack Smith classified documents case of Mar-a-Lago is going to bring a motion for what's called selective prosecution. Very, very hard to win these motions.
What you have to do is show a judge somebody else did essentially the same thing I did. I was prosecuted. He was not. Now, Donald Trump has a basis to make that motion. ASHLEY ALLISON, CNN POLITICAL COMMENTATOR: So, I'll just say, everything you said, brilliant. You're a wonderful lawyer.
HONIG: Thank you.
ALLISON: And yet, most Americans are not going to read that report. Most Americans did not read the Mueller report. But what they will know is that Joe Biden was not charged with the crime because Robert Hur decided that. And that Robert Hur also made editorial comments about his age. Those are the two takeaways.
The question is, when Donald Trump's case comes up, will those still matter to people, or will his case of not cooperating and the antics that we know Donald Trump will pull when he is up for trial will cancel out what Joe Biden did today?
COLLINS: Everyone, stand by, we have a lot more to get catch up on as we are breaking down those abrupt remarks from the president there at the White House.
Up next also, today's historic oral arguments that happened at the Supreme Court. That has to do with keeping Donald Trump off the ballot in Colorado under the 14th Amendment's insurrectionist clause. Laurence Tribe and Retired Judge Michael Luttig, who played a key role in that debate, will join Anderson after a quick break.
(COMMERCIAL BREAK)
[20:42:14]
ANDERSON COOPER, CNN ANCHOR: It sounds awfully national to me, telling words during oral arguments today from Supreme Court Justice Elena Kagan, part of a chorus from her fellow justices signaling a deep skepticism for Colorado State Supreme Court decision barring Donald Trump from the ballot. In a moment, I'm going to talk to the two constitutional scholars, Laurence Tribe and Judge Michael Luttig, who have been a key part of this debate over this, but first, CNN's Paula Reid.
(BEGIN VIDEOTAPE)
PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT (voice-over): In one of the most anticipated Supreme Court cases of the year, the justices signaling they will side with Donald Trump on the question of whether he's eligible for the 2024 ballot. The former president did not attend Thursday's arguments. Most justices didn't address his role in the January 6th insurrection, instead focusing on legal arguments around the 14th Amendment.
Trump's lawyer, Jonathan Mitchell, an experienced Supreme Court advocate, argued Trump isn't covered by the so-called insurrectionist ban.
JONATHAN MITCHELL, ATTORNEY REPRESENTING DONALD TRUMP: A ruling from this court that affirms the decision below would not only violate term limits, but take away the votes of potentially tens of millions of Americans.
REID (voice-over): And argued January 6 was not even an insurrection. Only one justice asked about whether it was.
KETANJI BROWN JACKSON, JUSTICE: So the point is that a chaotic effort to overthrow the government is not an insurrection?
MITCHELL: This was a riot. It was not an insurrection.
REID (voice-over): Jason Murray argued for Colorado voters who won their case at the lower court.
JASON MURRAY, ATTORNEY REPRESENTING COLORADO VOTERS: By engaging an insurrection against the Constitution, President Trump disqualified himself from public office. States have the power to ensure that their citizens' electoral votes are not wasted on a candidate who is constitutionally barred from holding office.
REID (voice-over): But the justices appeared much more skeptical. In an ominous sign, the Chief Justice said Murray's arguments were at war with history.
JOHN ROBERTS, CHIEF JUSTICE OF THE UNITED STATES: That seems to be a position that is at war with the whole thrust of the 14th Amendment and very ahistorical. The whole point of the 14th Amendment was to restrict state power.
REID (voice-over): And question the consequences of a ruling in favor of Colorado and other states then following suit.
ROBERTS: It'll come down to just a handful of states that are going to decide the presidential election. That's a pretty daunting consequence.
REID (voice-over): Even Liberal Justice Elena Kagan asked this.
ELENA KAGAN, JUSTICE: I think that the question that you have to confront is why a single state should decide who gets to be president of the United States.
REID (voice-over): It was Murray's first time arguing before the high court, and he engaged in several contentious exchanges with the justices, and even got a scolding from Justice Gorsuch, who he once clerked for.
MURRAY: Nevertheless, they were put into that office.
NEIL GORSUCH, ASSOCIATE JUSTICE OF THE SUPREME COURT: No, no, we're talking about Section 3.
MURRAY: And --
GORSUCH: Please don't change the hypothetical.
[20:45:02] REID (voice-over): And even though the argument seemed to go well for Trump, he still wanted the last word, addressing reporters outside Mar-a-Lago.
DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: Can you take the person that's leading everywhere and say, hey, we're not going to let you run. You know, I think that's pretty tough to do, but I'm leaving it up to the Supreme Court.
(END VIDEOTAPE)
COOPER: And Paul Reid joins me now. Do we know how long is it going to take to get a decision?
REID (on-camera): It's unclear. We know the chief justice is under enormous pressure to build consensus across party lines, come up with something, maybe a narrow ruling that would have bipartisan support. If you listen to the arguments today, it appears that that is possible.
And it's important, Anderson, because we know this court is under scrutiny for concerns about ethics and partisanship. But something like that also takes time, and it's unclear if the chief justice will be able to accomplish this and get out an opinion before Super Tuesday, which is just a month away.
COOPER: All right, Paul Reid, thank you.
I want to get perspective now from perhaps the two best known voices behind the argument that the 14th Amendment bars the former president from the 2024 ballot, both distinguished constitutional scholars, Retired Federal Appeals Court Judge Michael Luttig and Harvard Law School's Laurence Tribe, whose latest book is titled, "To End Presidency: The Power of Impeachment."
Professor Tribe, I'm wondering what your takeaway was from today's historic hearing.
LAURENCE TRIBE, HARVARD LAW SCHOOL PROFESSOR: Well, it's quite clear that the Colorado decision to exclude Donald Trump from the primary ballot is going to be overturned, perhaps nine to nothing, perhaps eight to one. But what I took away from it was quite a different lesson.
The two members of the court, who were my former students, the Chief Justice and Justice Kagan, whom you quoted just a couple of minutes ago, saying, isn't it amazing that just one or two states might determine who becomes president? Where have they been all this time?
When they studied constitutional law, there was something they learned about the Electoral College. I doubt that they've forgotten about it. But to listen to the argument, you'd think they have. The fact is that the court is engaged in sort of selective remembering and selective forgetting.
They seem to have forgotten that the way our Constitution is structured under Article II, it is the states that basically run even the election for president. And it is true, as the chief justice pointed out, that the thrust of the 14th Amendment was to give the federal government more power and the states less. But it didn't change the basic structure of who decides who gets on the ballot.
Now, if I just take a step back, let me just say, what Judge Luttig and I wrote back in August of last year was that Donald Trump is constitutionally disqualified by the most democracy protecting provision of the Constitution. It's there to prevent someone who swears to support the Constitution and then mounts an insurrection against it to prevent that person from coming back into power.
We said that under that provision, Donald Trump is disqualified. Nothing the Supreme Court decides in this case is likely to contradict that. They're likely to say that the way Colorado did it at this stage, when they are simply deciding who runs for the primary election, that is not permissible.
But they're simply kicking the can down the road, because when people argue that he is disqualified by the Constitution, either at the stage of the general election, or when Congress meets in January of 2025 to count the electoral votes, this problem will rise again and the court will not have avoided chaos. It will simply have postponed it.
COOPER: Judge Luttig, I'm wondering what your takeaway was. I mean, certainly you heard the skepticism from many of the justices today about the Colorado's court decision.
J. MICHAEL LUTTIG, FORMER U.S. COURT OF APPEALS JUDGE, FOURTH CIRCUIT: Anderson, the first thing I would say is that I agree with every single substantive constitutional point that Professor Tribe just made. It's rare, Anderson, that you can tell what the Supreme Court is going to do from oral argument. But sometimes you can tell what the court is not going to do, and this is one of those times.
The Supreme Court of the United States is not going to decide whether the former president is disqualified under Section 3 of the 14th Amendment. Not now, and I don't believe ever. To that kicking the can down the road, Professor Tribe is exactly right.
[20:50:01]
Under our Constitution, the states have the power, under the electors and elections clauses, to administer and conduct federal elections, including the election for the president of the United States. That's all the Supreme Court needs to know to say that the state of Colorado had the constitutional power to disqualify the former president.
But as Professor Tribe says, they've now kicked it down the road, if not kicked it off the road forever. In particular, if they've only kicked it down the road, there will come a time when the general election is approaching that the Supreme Court will have to decide the case. And that would be a less timely decision than it would have been to make that decision today.
But what the Supreme Court is hoping without any question whatsoever is that it will never have to decide this question. They're hoping and banking on the fact that Donald Trump will not win the presidency. Because in their view, and in the argument that was properly made by his lawyer, Section 3 only disqualifies a person from holding the office.
By its terms, it does not disqualify one from running for the office, in either the primary or the general. But if the Supreme Court waits, and it does come to pass that the former president is elected president of the United States in 2024, then the Supreme Court of the United States will have to address whether that newly elected president of the United States is disqualified under the 14th amendment. That is a recipe for national chaos.
COOPER: I mean, that seems, how would they even -- you're saying if Trump was actually elected, then the Supreme Court would have to decide whether the 14th Amendment would prevent him from actually assuming office.
LUTTIG: That's exactly correct, Anderson, because Section 3, by its terms, only prevents a person who engages in an insurrection against the Constitution from holding the office. And indeed, the former president's lawyers actually argued in their reply brief, that the Supreme Court of the United States never will have the power to decide the former president's disqualification.
COOPER: Right.
LUTTIG: Why? They argued because the Congress of the United States can at any time remove the disqualification. And so they literally argued to the Supreme Court, one, the court does not have the power to decide the case, this issue at all --
COOPER: Right.
LUTTIG: -- and it certainly can't decide it until 2029 after the president --
COOPER: That would be cast.
LUTTIG: -- would be out of office if he were elected.
COOPER: Yes. Professor Tribe, just briefly, were you -- you know, nobody really thought, or a lot of people -- a lot of observers thought, and it seems like it was the case, other than Justice Jackson, the court largely avoided discussion of whether January 6th was an insurrection. I assume that's -- you anticipated that.
TRIBE: Right, except I do want to add January 6 is only the climax. What we didn't hear today and are going to hear going forward is whether the president, who was then the president, whether Donald Trump orchestrated a coup against the Constitution through fake electoral ballots, fake electoral slates, an elaborate plot.
If that plot had succeeded, they wouldn't even have had to storm the Capitol. It's the entire course of conduct --
COOPER: Yes.
TRIBE: -- that was an insurrection against the Constitution. The court could have made that clear, and that would have solved, at a national level, what is otherwise still going to bedevil people through different definitions of insurrection.
COOPER: Professor Tribe, I appreciate your time. Judge Michael Luttig as well. Thank you so much.
TRIBE: Thank you.
COOPER: I'll go back to Kaitlan.
COLLINS: Thanks, Anderson.
Of course, we heard from the former president a moment ago, he had this to say about what happened in court today, which I should note was an appearance that he chose not to attend.
(COMMERCIAL BREAK)
TRUMP: I thought it was very -- it's a very beautiful process. I hope that democracy in this country will continue. I thought the presentation today was a very good one. I think it was well received. I hope it was well received.
(END VIDEO CLIP)
[20:55:07]
And I'm joined now by a former attorney for Donald Trump, Jim Trusty, who we've seen multiple times here before. What did you make of how the arguments went today and how each side argued them?
JAMES TRUSTY, FORMER TRUMP ATTORNEY: I think the arguments actually went reasonably well. I mean, both of these lawyers are people that clerked for Supreme Court justices, they seem to be pretty at ease, pretty at home. There was different levels of kind of hostile fire as he -- as we heard before in terms of Justice Gorsuch turning the tables on his own former law clerk for a minute, but it was not particularly aggressive.
It wasn't what I would call an extra hot bench. They got their points out. I thought there was some interesting areas that are really kind of different than the last two folks that Anderson --
COLLINS: How's that?
TRUSTY: -- was talking about. Well, you know, a couple of things. Number one, is it's not a surprise at all to me that they didn't really get into this thicket, this rabbit hole of what is insurrection and what was the proof. I mean, if you really -- if you want to get to the heart of what I think strikes a lot of people as wrong with that proceeding, it's not that they're all well versed about Article 3, you know, Section 3 of the 14th Amendment. It's this idea of having a mini trial, of having a political report serve as evidence with no real rules of evidence. Having a sociologist come in and say, I know what Trump really meant. I mean, those are things that are kind of bizarre due process challenges.
But if the Supreme Court goes on that, if they say, we don't like the trial, then they keep the door open for every state to have its own trial and to get an assessment by the Supreme Court eventually. I think they're looking -- or Roberts, I think, is looking for a kind of a foundational procedural thing that can shut all of this litigation down.
And what was interesting to me, the one that had a lot of traction, is the idea of whether or not this part of the 14th Amendment even applies to the president. And remember, the Colorado lower court said, I think he's an insurrectionist, but it doesn't apply to him. And that takes us --
COLLINS: The officer versus the office.
TRUSTY: Exactly. And what it does, it takes you into this really, I mean, it may be fascinating to nerds like me only, but literally, you had justices talking about what happened in 1868, 1869, 1870. How does that shed light on, you know, if Jefferson Davis ran for president of the newly United States, what was going to happen? And to me, that's all fascinating history.
What was interesting to me is, of all people, that Justice Jackson weighed in on that. It was maybe a little hint -- I heard it as if there was a little hint of disappointment in her voice, but she said, it really doesn't look like he was -- he, the president -- was supposed to be a part of this particular regulation. You know, she looked at it and said, he's not on the list.
COLLINS: Even though she seemed to believe -- and I don't want to obviously speak for her -- but she seemed to believe that he had maybe engaged in the insurrection, just not necessarily that this ban of this clause would apply to him, dating back to that conversation.
TRUSTY: She's basically tracking the lower court in Colorado. I mean, saying essentially, I have all sorts of problems with this conduct, that would be kind of what we infer from her comments, but that I just don't think that this applies to him at all. And if that's the case, if the 14th Amendment literally stops itself at appointed officers, not at the president of the United States, then all the litigation just falls off.
COLLINS: How different are the implications of what they do decide if they decide it on a technical procedural grounds or if they decide it on the merits?
TRUSTY: I think with a lot of the procedural grounds, they can amputate all of the rest of the litigation. I think it was Justice --
COLLINS: But does it open up to further litigation in the future? TRUSTY: Well, no, not particularly, but there are some avenues within the procedural that could still get there. I think Justice Sotomayor was talking about some issues about federalism, whether states versus feds. And I think my read on it was she was setting up the possibility that you could still have litigation on this issue, but in federal court.
So there may be an agreement that we don't want to get to the due process. We don't want to go one by one by one. You know, Maine, Colorado, all these different states with different processes to talk about the trial. But there may be disagreement on the exact procedural basis that could shut this down.
And as you're pointing out, some of it may not amputate all the rest of the litigation. Some of it could.
COLLINS: Donald Trump wasn't there today. As you know, we've talked recently, since you've no longer represented him, but times when he's gone to court, how much of a difference do you think that makes when he's in the room with the attorneys making the arguments and when he's not?
TRUSTY: Yes, I don't -- look, I think the last time we talked about it, I said, I think it's good for him to be able to take things in firsthand, but it's not something where, you know, it's not a -- an old gangster movie where all of a sudden the judges freak out because he's there. I mean, these are Supreme Court --
COLLINS: I met his attorneys more, act differently or maybe argue a little differently.
TRUSTY: I would hope that they don't really cater to the politics as much as just knowing I'm in front of the Supreme Court, highest court of the land. I've got to answer their questions and I have to have the best foot forward.
So my impression, there was a couple of soundbite moments in terms of talking about insurrection. He disqualified himself, I think was the line. But really, most of it was very much, I think, responsibly reacting to the questions.
COLLINS: You said not a hot bench. What does that tell you about how the court is approaching this? Do you think they kind of have made their decisions?
TRUSTY: No, I mean, you know, lawyers that try to bank on the Supreme Court are going to go poor quickly on those predictions. So I don't bet any money on it. But I do think that they -- I think there seem to be a flavor of looking for a procedural/foundational component that they can agree on to basically end this without talking about the trial for insurrection itself.
COLLINS: Jim Trusty, always great to talk to you.
TRUSTY: You too. COLLINS: We'll wait to see what they decide. Obviously, we have many more legal issues for the former president that we may talk about going forward. Thanks for joining us here on set tonight.
