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The Source with Kaitlan Collins
Clock Ticking On Supreme Court Decision, After Justices Appear Skeptical Of Sweeping Trump Immunity Claims; CNN Poll: 24 Percent Of Trump Backers Say A Conviction Might Cause Them To Reconsider Their Support; Full Thursday Trial Transcript Just Released. Aired 9-10p ET
Aired April 25, 2024 - 21:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[20:55:00]
KAITLAN COLLINS, CNN HOST, THE SOURCE WITH KAITLAN COLLINS: And here, in Washington, Anderson, history was being made as well, in a Supreme Court case, which flows from his scheme, to remain in office, and his claim that he should not be held criminally accountable for that.
I'm joined, tonight, by one of the attorneys, representing Donald Trump, in the immunity case, before the Supreme Court, Will Scharf, who was at today's Supreme Court oral arguments. I should note. He is also running for Missouri Attorney General. We're not going to get into that tonight.
It's great to have you.
You were sitting in the second seat, as these arguments were playing out today.
I heard something today that I had never heard from your team before, which was John Sauer saying that yes, some of the allegations, in Jack Smith's indictment, are indeed private acts.
What led to the change, from your team?
[21:00:00]
WILL SCHARF, ATTORNEY FOR DONALD TRUMP: Well I think we've always conceded, first of all, that there is no presidential immunity for a president's private acts in office. I think we've also conceded that obviously, President Trump engaged in many private acts, during the time period in question.
I thought, in many respects, the much more damning concession, if you could call what we did a concession at all, was Michael Dreeben, essentially admitting, the attorney for the Special Counsel's Office, essentially admitting that these facts were so inextricably intertwined, in a colloquy with Justice Barrett, that it would be very difficult to separate them out on remand. That's how I interpreted his statements at least.
COLLINS: Well, and to translate that for people watching. That means that basically, if it was an official act, they would not be able to use that potentially at trial. He was arguing they should be able to use it to paint a bigger picture.
But Trump has argued total immunity. He has not said, well, some of these are private acts. I mean, this would mean the case could at least, in part, go forward and go to trial.
SCHARF: We believe that without the official acts, charged in the indictment, there is no case.
We've been very consistent in our position, from the start, starting with the District Court, proceeding through the Circuit, and now at the U.S. Supreme Court, that what we're talking about is absolute immunity, yes, but absolute immunity just for a president's official acts in office.
I think that's a crucial distinction that's been missed in much of the press coverage around President Trump's statements.
COLLINS: But why is there no case, if it's just for part of the acts that are in the indictment?
SCHARF: Well, because the indictment itself relies largely on acts that we believe are clearly official. We're talking about things--
COLLINS: What's the breakdown?
SCHARF: Well looking at things, like asking the Department of Justice to investigate claims of election fraud, considering replacing the acting Attorney General of the United States, which is at the absolute heart of the president's power under Article II of the U.S. Constitution.
We believe that this is an indictment that charges official acts. And therefore, if the court were to recognize the sort of immunity that we've proposed, we don't see how this case could proceed.
COLLINS: But as John said, today, you also believe that this indictment charges private acts?
SCHARF: There are--
COLLINS: And John said that he could be tried for private acts.
SCHARF: There are some private acts in the indictment, or there are acts that could be characterized as private in the indictment. President wouldn't have immunity from those. The question, though is--
COLLINS: So, why can't those be tried, and then ones that you say are official, trying to make Jeff Clark, the Attorney General, put those aside and remove them? Why would Trump not be able to be tried for the private acts?
SCHARF: Well, I think if you -- if you read the indictment, what they're trying to point to is a much larger scheme that really involves largely official conduct. So, without the official conduct, if the Supreme Court were to recognize presidential immunity, the way that we've suggested, I believe the indictment would have to be dismissed.
COLLINS: What are the private acts that you believe are in the indictment?
SCHARF: I'd have to look at the indictment more closely.
But I think the sorts of things that you're talking about, private conversation -- or that were mentioned at the court today, private conversations between the President and his political team, that sort of thing looks more like private conduct than the sorts of things we just discussed, like directives given to the Department of Justice, and consideration of Presidential Personnel.
COLLINS: But the other acts that were brought up today were conversations he had with people like John Eastman, and Jenna Ellis and Rudy Giuliani, three people who did not work on behalf of the federal government. Those are charged in the indictment. So, why could Trump not go to trial for that?
SCHARF: Well but it's worth noting, and it's really important to explain what these alternate slates of electors were, really throughout American history, probably most notably in 1876.
When you're challenging a presidential election, after the certification deadline in certain states, you present alternate slates of electors, and that gives political actors, the opportunity to get to the bottom of whether fraud occurred, whether outcome determinative fraud occurred, and it allows them to pick a different slate.
In 1876, Rutherford B. Hayes was elected president, on the back of three alternate slates of electors.
So, those sorts of preparatory actions giving political actors the ability to act on allegations of election fraud, I think there's probably intermixed private and official conduct there. And that ultimately will be a very thorny issue for the District Court on remand, to assess.
COLLINS: That's a pretty generous view of the fake slates of electors. I mean, as Amy Coney Barrett, the Justice noted today even, this is fake paperwork that was just created, for slates of electors that were not alternate, they just were fake.
SCHARF: Yes.
COLLINS: They were fraudulent.
SCHARF: Well, again, in 1876, Rutherford B. Hayes was elected president--
COLLINS: Yes. But I'm talking about 2020, and what happened there.
SCHARF: Well in -- there's a long history of this. In 1960--
COLLINS: There is not a long history of multiple slates of fake electors, people who are not the legitimate electors, representing the will of the voters in Arizona, Wisconsin, Pennsylvania and Michigan.
SCHARF: Well, again, what we're talking about is alternate slates of electors. And you can characterize them as fake or not. But in cases where there are serious allegations of election fraud, this is the system that's been used throughout American history, probably most recently, in the 1960 election, when an alternate slate of electors from Hawaii was seated.
[21:05:00]
COLLINS: So, let me ask you this, because if you believe that there are some private acts in here, and some official acts in here, why didn't you ask the District Court, two months ago, to suss that out? Why wait and take it to this Supreme Court with this claim of total immunity?
SCHARF: Our position has been consistent, from the District Court through until today. We believe that President Trump has absolute immunity for his official acts in office. The D.C.--
COLLINS: But Trump doesn't draw that distinction.
SCHARF: He absolutely does. The D.C. district unfortunately--
COLLINS: He doesn't.
SCHARF: --issued a ruling that said there is absolutely no immunity in the criminal context. The D.C. Circuit affirmed that incorrect ruling.
And the reason why the argument today I think took the tenor that it did, and probably the reason why we're before the Supreme Court at all is because of the egregiousness of those decisions to not recognize any immunity in the criminal context whatsoever.
COLLINS: Well, and the Supreme Court, and the justices did seem, the conservative ones at least, skeptical of that.
But I have to ask you about something else, because when one of the justices asked today, if the President ordered a military coup, if that would be considered an official act? Your team, John Sauer, argued, quote, "It would depend on the circumstances, whether it was an official act."
What are the circumstances where ordering a military coup is an official act of the presidency?
SCHARF: Well, again, when you're talking about official acts, you don't look to intent, you don't look to purpose. You look to their underlying character. So, if that were -- if that sort of situation were to unfold, using the official powers of the president, you could see there being an aspect of officialness to that.
I would say, though, that our constitutional system provides powerful structural checks against exactly those sorts of scenarios, which have safeguarded our republic throughout American history. So the idea that-- COLLINS: OK. But that's the argument people make, and also we never had a moment, where a sitting President tried to overturn a legitimate election until now.
SCHARF: Again, I would -- I would fight your characterization of what happened in 2020.
But all of this parade of hypotheticals that some of the justices today, that our opponents have put forward, whether it's the coups, whether it's SEAL Team Six assassinating political rivals, it's worth noting that the structural checks in place, in our Constitution, not including criminal prosecution of former presidents, have served to safeguard us from exactly those sorts of scenarios, throughout American history.
And it's actually our parade of horribles, this idea of political prosecutions, crippling presidents, that's what we're seeing play out in America today.
COLLINS: Well, I would disagree with that characterization. I know that you refer to them as the Biden investigations. Obviously, President Biden's not involved in these.
But you just said that they're hypotheticals. They're actually not. Alyssa Farah Griffin, who was a comms director in the White House tweeted this, and said that there was a moment, where she personally witnessed Donald Trump suggesting that whoever leaked that he went to the bunker, during the George Floyd protests, at the White House, should be executed.
So, it's actually not really that far-fetched--
(CROSSTALK)
SCHARF: Well but they -- but they obviously weren't executed.
COLLINS: But does -- is that -- does the person have to be executed for it to be brought to bear?
SCHARF: I think hyperbole has a place in almost any office. But I'd come back to--
COLLINS: You think it's just hyperbole?
SCHARF: I -- no--
COLLINS: I mean, you're making a pretty brazen argument that--
SCHARF: No--
COLLINS: --military coups could potentially be official acts that that well the person wasn't executed, so it doesn't matter.
SCHARF: But just because a military coup, or any of these sort of parade of horribles, could constitute an official act doesn't mean that they're right, doesn't mean that they would be allowed under our constitutional system, and doesn't mean that we're in any way shape or form justifying that.
What we're talking about here, though, is the scope of immunity, that presidents need to be able to rely on, to discharge their core Article II responsibilities as president.
Without immunity, I think you'll end up in a situation, where presidents will essentially be blackmailed, by their political rivals, with the threat of political prosecution, the day they leave office. And to me, that's a very scary scenario.
COLLINS: So, do you disagree with Justice Ketanji Brown Jackson, who said, what you're arguing could allow the seat of the presidency to become a -- where you can act with impunity that any criminal act couldn't happen, because you have nothing to fear, no prosecution.
SCHARF: We believe immunity is inherent in the constitutional design. So, that's the system we've been operating under, for hundreds of years.
COLLINS: But it's, immunity is not actually in the Constitution.
SCHARF: Well we believe that immunity naturally follows from the Constitution, the same way that civil immunity, which isn't written in the Constitution, naturally follows from our constitutional system. And that was recognized by the court in Nixon v. Fitzgerald in 1982.
COLLINS: What is victory here? Is it the Supreme Court embracing your argument on total immunity? Or is it just sending it back to the lower court, and therefore delaying the January 6 trial from happening, before the 2024 election?
SCHARF: We think it's very important for the future of the presidency, for the court to embrace a vigorous doctrine of presidential immunity in the criminal context.
COLLINS: But will you still consider--
SCHARF: To us, that's what victory looks like.
COLLINS: Will you still consider it a victory, if they just send it back to the lower court, and then it essentially delays the trial?
SCHARF: We believe that what's going on here is much more important than this particular trial, or this particular defendant. We believe that what's at stake here is the future of the presidency. And without a vigorous immunity doctrine, I fear for the future of our country.
COLLINS: Will Scharf, great to have you. You were inside the Supreme Court today. Thank you for joining us here, tonight.
SCHARF: Thanks for having me.
COLLINS: Also, here tonight, my panel is back with me.
Donald Trump's former attorney, Jim Trusty.
CNN's Legal Analyst and former federal prosecutor, Elliot Williams.
[21:10:00]
And civil rights lawyer, Sherrilyn Ifill, who is the Vernon Jordan Chair in Civil Rights at the Howard University Law School.
Let me just start with you since you're just joining us.
SHERRILYN IFILL, CIVIL RIGHTS LAWYER, VERNON JORDAN CHAIR IN CIVIL RIGHTS, HOWARD UNIVERSITY LAW SCHOOL: Yes.
COLLINS: Can I just get your reaction to what you heard from Trump's attorney of how they viewed today?
IFILL: Yes. I mean, it was an interesting argument in that there were these hypotheticals that should have been at the most extreme. But they really weren't.
Because the person that we're dealing with, Donald Trump, is the same person, who asked his Defense Secretary, couldn't we just shoot protesters in the legs? He is the same president, who said he wishes that he had generals, like Hitler had generals in Germany. We just heard the tweet that you mentioned about someone being executed for leaking that he was in the bunker, during the George Floyd protests.
The examples that we were hearing today, from some of the justices, about what a president, who felt he had unfettered power and would suffer no consequences could do, were ripped from the headlines. They were the kinds of things that the former President has said.
And I think it was shocking to hear the former President's attorney, Mr. Sauer, suggest that those things could be official acts. Selling nuclear secrets to a foreign adversary. We have a president, who stole classified documents, which is the subject of another piece of litigation.
So, these are not things that were pulled from the sky. These are real, serious possibilities. And to have the attorney of the former President stand in the well of the United States Supreme Court, and suggest that these things could be official acts.
And the only thing more shocking than him making that argument was having a majority of Supreme Court justices, not sound as though they were horrified and aghast at hearing that that was the position the former President was taking.
COLLINS: Jim Trusty, what was your reaction? Because John Sauer did make a big concession today, in saying that some of that in the indictment is private acts. I've never heard them say that before.
JIM TRUSTY, FORMER COUNSEL FOR DONALD TRUMP: Well, he's conceding the flavoring of the private acts, provided by Coney Barrett's questions, which is--
COLLINS: Right. He's saying they're allowed. TRUSTY: --you're assuming the criminal intent within the -- within the actions, which gets you down to very minute factual issues of like, did a -- did an elector, a replacement elector feel like they were defrauding? Or were they actually thinking, this is the backup plan if we went in court, which is a lot of things that have been said by that other side.
So look, the reality and what we're kind of struggling with, I think collectively, is the court is likely to try to create a line. But that line is going to be a difficult line to define precisely.
So, when you talk about an official act, is it this particular minute action or comment or conversation? Or is it within the broader category of defending the country or safeguarding elections? And we're not going to really know where they come on that until they do. But that's going to -- that's going to be the battleground, going forward, for litigating whether something falls within or without immunity.
ELLIOT WILLIAMS, CNN LEGAL ANALYST, FORMER FEDERAL PROSECUTOR: Yes. And both John Sauer, and Will a moment go, both exceptionally good attorneys. All, I think, all but conceded that the next step ought to be number one, either sending it back for more findings, or just let it go to trial, and have a jury sort out this question of what's an official act and what isn't.
But it was a huge concession for which neither of them, I think, had a very compelling answer, to be perfectly candid.
I think it's not just mere hypotheticals. We are talking about specific conduct that a president could engage in.
Let's make up another one right here. If a president kidnapped, or -- kidnapped and harmed Supreme Court justices, for the purpose of appointing their successors, clearly an official act of the presidency, also clearly a crime. And you cannot keep a straight face, and make an argument that that's not a prosecutable act.
COLLINS: The other thing that stood out to me also was I remember when Trump was impeached after January 6, and Mitch McConnell stood in the well of the Senate, and said, well, the justice system will take care of him. This is not the place to take care of this. The justice system.
The argument that kind of went over like a lead balloon today that John Sauer did still -- trying to make was that you must -- a president first must be impeached and then convicted.
IFILL: And convicted, yes.
COLLINS: To then be prosecuted for something.
IFILL: Yes, this is the bait and switch. Even Trump's attorneys said that, after Trump was impeached. Mitch McConnell said it. And his attorneys also said that the proper avenue is criminal prosecution, not this process. So, that's a kind of a bait and switch. But I want to get back to something else. I don't think that these private acts that were conceded today, which I think frankly, I want to be nice to Mr. Sauer, but I don't think that he did a terrific job. Those concessions were deadly.
Calling the Speaker of the House, of the Arizona legislature, and asking him to call back the legislature, so that they could put in fake electors, doesn't have anything to do with the President's official power. Doesn't have to do with the Justice Department.
Has to do with the president placing a call to Rusty Bowers in Arizona to ask him to do something that was illegal. The President telling Rudy Giuliani, to spread the idea of this false electors scheme to various people, his private attorney? That is not an official act.
[21:15:00]
COLLINS: The call to Raffensperger, the Senators made in Georgia.
IFILL: The call to Raffensperger, the Secretary of State, and saying find me 11,000 more votes? This is -- there's nothing about this that is entangled with the official powers of the presidency. And any one of those counts of the indictment are deadly for this President.
And I think that's why Sauer didn't come back after for rebuttal, because I think having made the concessions he made, and having had the court, frankly, not react in the way that one might have expected. I think he thought it was better that he not come back up to the podium and further unravel his case.
The problem is not whether Sauer did a terrific job, or whether these private acts and official acts are commingled. It's the proclivity of a majority of this Supreme Court, to give the benefit of the doubt, to a former President who's demonstrated that he is not deserving of the benefit of the doubt that the prime directive should be--
COLLINS: Yes.
IFILL: --protecting our country, our democracy, not this president.
COLLINS: Well and Jim, he, at the end there was saying, we do want a full victory here. We want them to fully embrace our argument.
But do you believe it would be a victory in the Trump legal team's eyes, if this just does go back down to the lower court, which would, for people at home being like, what -- what does that entail for the case? It would basically have so many complications and delays and there's no way it would happen come before November.
TRUSTY: Yes. I mean, look, the whole notion that there was a speedy trial need, to try the J6 case by date-certain was absurd. This was Jack Smith, with a very receptive court, trying to push for something that makes no sense.
Speedy trial right is entirely or 99 percent, designed to protect a defendant, particularly an incarcerated defendant, from sitting and rotting in prison and then eventually being acquitted.
So, this idea that they had to have it done was pretty shamelessly political. And I think that's why the Supreme Court bristled when Jack Smith said let's expedite it. I don't think they care about the political.
COLLINS: As he wanted to have this whole conversation months ago, in December.
TRUSTY: Well, they don't care about the political timeline that Jack created. And so--
IFILL: Well they thought--
TRUSTY: And so, what I'm saying is, the realistic ending of this case, if the majorities hold with how oral argument went, is that they're going to be returning all of these cases, where immunity is in play, to fact-finding lower courts, which will then have--
COLLINS: And you're saying that--
(CROSSTALK)
TRUSTY: --litigation, a little bit like you have with police shootings, about whether it's in the course of employment, and then they're probably going to march right back up to the Supreme Court and say, how about this one?
WILLIAMS: Oh, this is not the last appeal to go all the way up. Without question.
IFILL: Well, if it's after the election, and the election goes Mr. Trump's way, they will never see the light of day.
COLLINS: Because we know he'll get rid of the investigations.
Up next, we'll return to the former President's criminal trial, new exhibits just came out, and we're also getting new insight, gleaning it from the full transcript that we also just received moments ago. Everything that happened in that courtroom today. Also, a law professor and his doubts about the prosecution's case.
[21:20:00]
(COMMERCIAL BREAK)
ANDERSON COOPER, CNN HOST, ANDERSON COOPER 360: We're now in today's testimony and cross-examination, in the former President's hush money trials, specifically the strength or not of the prosecution's case, that and the wisdom of bringing it.
Joining the panel, someone with doubts about both. Boston University law professor, Jed Shugerman, Author of "The People's Courts: Pursuing Judicial Independence in America."
Professor, thanks for being with us. I saw, I read this Op-Ed, you wrote in The New York Times. It was
titled, "I Thought the Bragg Case Against Trump Was a Legal Embarrassment. Now I Think It's a Historic Mistake."
Why a historic mistake?
JED SHUGERMAN, LAW PROFESSOR, BOSTON UNIVERSITY, AUTHOR, "THE PEOPLE'S COURTS: PURSUING JUDICIAL INDEPENDENCE IN AMERICA": Well one big- picture problem with as a historic mistake is that those of us, who have been dreading the return of Donald Trump to office and misusing power? We've been talking about the rule of law for years.
And what the rule of law means is there are rules. And some of those rules include precedents, because those rules -- you have to follow those rules if you expect the other side to follow those rules.
So, we've been concerned about the misuse of prosecutorial power. Donald Trump is telling us exactly what he's going to do with the Civil Service and the DOJ. Now is the time to make sure prosecutors are not abusing their power, and to make sure that we are following the rule of law.
COOPER: And do you think prosecutors are abusing their power?
SHUGERMAN: Yes, I think this case is an abuse of prosecutorial power.
COOPER: Why?
SHUGERMAN: So they're -- some of the follow-up that I've done on this case is to dig into how it is unprecedented. So, there are three ways this case is either unprecedented, or it's based on untested novel theories or applications.
The first is that there has never been a state prosecution. I searched for all the state cases that referred to the Federal Election Campaign Act, which is the core of the case that is the underlying crime that's at the basis of the Manhattan D.A. So, this is -- the Manhattan D.A. is trying Trump for a federal violation, shoehorned into state statutes.
COOPER: Right.
SHUGERMAN: State prosecutors never tried this before, right, because the Federal Election Campaign Act, either by law or norm or lack of state expertise is for federal. So that's one problem.
The second problem is also a kind of jurisdictional problem. Trump's lawyers argued that this particular statute, using a state violation, state business recording -- misrecording, to upgrade it for the concealing of another crime, it has to be within New York jurisdiction. There a lot of good reasons why that might be.
The Manhattan D.A.'s response, they couldn't cite a single precedent of a judge validating that use, means that that's an untested use.
And the third problem is that there has never been an application of intent to defraud, which is a key element of this case. It's never been used this broadly. It's never been used as an intent to defraud the general public, never used as election interference, whatever that means legally.
So, if it's unprecedented, it means that it is being used for Trump and Trump only, except it could be used by the other side now. That's the problem.
JEFFREY TOOBIN, FORMER FEDERAL PROSECUTOR: But Jed, isn't the issue that the conduct is unprecedented?
I mean, isn't the fact that -- I mean, filing false business records is routinely prosecuted, in the New York State courts. What's unusual here is the false business records were used to cover up a campaign finance -- violation. That doesn't happen very often. I've never heard of it done before.
Isn't that the issue? Not the fact that this was some novel used by the prosecutors. It was a novel crime.
SHUGERMAN: So one problem is this -- you could always go to a level of generality with any case of selective prosecution. You can say, well, this is the first time an orange-colored president has ever done this. And then, you've got that unique circumstance to differentiate it.
[21:25:00]
There are campaign finance violations, campaign finance filings that are misfiled. In fact, the Clinton camp -- the Hillary Clinton's campaign had some issues with that. Obama's campaign. Now, I'm not saying it's the same. But this happens all the time. And yet, no state prosecutors ever tried it. That's -- and each one is a separate problem.
So, it is a remarkable coincidence that this Manhattan D.A. has stretched each of these three things, for the first time, when he also campaigned to become Manhattan D.A., on the platform of holding Trump accountable.
TOOBIN: Well, look, American -- American prosecutors in states, they run for office. That's true for every. So there's nothing unusual about Bragg in that respect.
ARTHUR AIDALA, NEW YORK CRIMINAL DEFENSE ATTORNEY: No, no, no, no, no, no, no, no, no, no, no, no, Jeffrey. You know better than I do.
American prosecutors don't run for office, and say vote for me, because I'll get that guy. They do not say that. No one runs for office and says, you vote me in and I'm going to get that guy. That's not what happens. That's not what's supposed to happen.
TOOBIN: And that's -- by the way, that's not what he said.
AIDALA: And all the federal prosecutors here know that.
TOOBIN: That's not what he said, running for office. ELIE HONIG, FORMER FEDERAL PROSECUTOR, SOUTHERN DISTRICT OF NY, CNN SENIOR LEGAL ANALYST: If I could, for a second here?
COOPER: Elie, go ahead.
HONIG: I share some of the professor's reservations that are stated in the article. I've said a lot of this on air. I do think they're out on a limb somewhat, in terms of the charging theory. It's a new theory. Also, as Jeffrey correctly says, it's unprecedented conduct.
I do want to ask you about something you write though. You say that this case is an embarrassment of prosecutorial ethics.
Now, there's a difference between, I question the judgment in bringing this case, maybe he should, maybe he shouldn't, maybe the case is weak or strong. But when you -- when you criticize someone for prosecutorial ethics, what specific prosecutorial ethics violation, do you think there is here?
SHUGERMAN: Well, there is an aspect of this, about ethics, which is that the part of to comply with the Sixth Amendment's right to be informed of the nature of the indictment. That's part of the Sixth Amendment.
Something unique happened in this case, which was, and it was for the entire year, the indictment of 34 charges were only specified, the business filings, and there was silence about what the other charge was.
It was shocking to me, as someone who cares about mass incarceration and prosecutors misusing their power. This was an example of what prosecutors do all the time.
HONIG: Isn't it--
SHUGERMAN: And it's I'm glad that there's a spotlight being shown on it.
And I am curious how many times, just to complete the thought, the Manhattan D.A. -- Trump's lawyers asked for a, quote, a bill of particulars. This is the way that New York says and claims to comply with the Sixth Amendment.
In this case, the Manhattan D.A. refused to provide a bill of particulars, and the judge allowed it.
Now, I wonder if that -- how much that happens. And maybe there's a spotlight on prosecutors.
COOPER: Let me just--
SHUGERMAN: Yes.
COOPER: Jessica, what do you think?
JESSICA ROTH, FORMER FEDERAL PROSECUTOR, SOUTHERN DISTRICT OF NY, PROFESSOR, CARDOZO SCHOOL OF LAW: Yes. So, I think that I want to wait and see how the evidence comes in, to really evaluate the strength of this case, and the merits of bringing it.
I agree with you that it's a novel prosecution. But it is novel conduct.
And it's a capacious statute in New York, this conspiracy to promote an election through unlawful means. That appears to be the primary theory of the underlying crime that the D.A. says the falsification of business records was intended to conceal and aid.
So, that statute that he's relying on is a very broad statute, under New York law. And it seems to me, it can be read plausibly to cover violations even of federal election law.
And so, it is true that it needs to go up through the appellate courts, whether this is a valid legal theory. But I'm not as disturbed as you are, by the attempt to use it, if the facts bear it out.
SHUGERMAN: So, the problem with one person's capacious is what the legal system also calls ambiguous. Now, that use of -- if that statute is 17-152, the unlawful conduct is not its own crime. So, the concept that you can prosecute someone for unlawful conduct, that's just that -- that is not the primary conduct.
The way the case is being tried is that is the state law to shoehorn in the federal election filing violation. The case is about a fed -- the only way to understand the intent to defraud, and the whatever this unlawful conduct is, is that it's a federal campaign finance filing, which the Biden administration deserves more credit for bending over backward not to charge it.
So, the idea that this is a, you know, Trump has claimed and alleged that this is Biden election campaign interference? To the -- it actually belies that claim that the Biden administration didn't charge it.
But the fact that the Biden administration, that the Biden DOJ didn't charge it, is also part of why we have a central federal government, to do this, so that we don't have red-state Republican prosecutors indicting anyone who says -- anyone who has a filing violation, because then that is a descent into the lack of rule of law.
ROTH: Except that the statute in New York, that is the basis, or one of the bases, for the theory here, is a conspiracy charge. It doesn't require proof that the federal election violation was actually committed necessarily.
And so, it is, in that sense, broader, arguably than the charge that could have been brought in federal court. So, there are differences between the theories that the state apparently is able to pursue, and that the federal government may have been able to pursue.
[21:30:00]
AIDALA: Well, first, I just want to say, to your point, I've never heard as, when I was a prosecutor, and as a defense attorney, in state court, I've never heard of a refusal of a bill of particulars.
For people, who want to know, a bill of particulars is like tell the defendant what he's charged with, tell the defendant what you're accusing him of. And it's the most simple, most basic Sixth Amendment right.
COOPER: I mean, I would--
AIDALA: You don't -- I've never seen a judge say, no, you don't have to turn over a bill of particulars.
I'd say Judge, I don't even know what. How am I supposed to defend them, if I don't know what I'm defending him against? It makes no sense.
COOPER: Jed Shugerman, I appreciate it, you being with us. Fascinating.
SHUGERMAN: Thanks.
COOPER: I'm not sure I understood it all. But I feel smarter, smarter for having listened to this conversation. I appreciate it.
Coming up, new CNN polls on what the former President's legal troubles may mean for him, politically. We'll be right back.
(COMMERCIAL BREAK)
COLLINS: New poll numbers in tonight, shedding light on what the many legal problems that we have been talking about, could mean for Donald Trump politically, a huge outstanding question that nobody really knows the answer to, at this point.
[21:35:00]
But this new CNN poll, out tonight, finds the 24 percent of voters, who are currently backing Trump, say that a conviction, in any of his cases, might cause them to reconsider their support. Most of his backers now of course say that they would stick with him. But 24 percent could be enough to make a difference in a close election.
I'm joined tonight at the table by Republican strategist, Doug Heye.
Back with us, Elliot Williams.
Also here, CNN Political Commentator, Ashley Allison, who worked on President Biden's 2020 campaign.
And former federal prosecutor, Shan Wu, also here with us.
Doug, I mean, this poll kind of shows. This isn't an academic question that we're having. It could potentially have a real impact on the electorate.
DOUG HEYE, REPUBLICAN STRATEGIST, FORMER RNC COMMUNICATIONS DIRECTOR: It could. And we saw this, on Tuesday night in Pennsylvania, where over 150,000 Republican primary voters voted for Nikki Haley, who is no longer a Republican candidate. So, they weren't making some choice based on who the Republican nominee would be. They made a very conscious decision. They don't want it to be Donald Trump.
And I was at Nikki Haley's, one of her last two or three rallies in Raleigh, North Carolina. And the atmosphere in that room was real. And I knew that most of those people were probably going to vote for Donald Trump.
But if you were putting on a T-shirt that said permanently banned, that the Haley campaign created, it's going to be harder for you to make that decision. This is what we're seeing. And if you're convicted, if Donald Trump is convicted, that makes it harder.
The other problem is, as this case goes on, it makes it harder for Donald Trump to make his case to those voters, who don't like Donald Trump and don't like Joe Biden, to talk about inflation, to talk about crime, to talk about the border, because all of this drowns out those things that Republican candidates, whether on the top of the ticket, or down below the ticket, want to be talking about.
COLLINS: Yes. And we still haven't seen real outreach from the Trump campaign, to those Nikki Haley supporters.
HEYE: Zero.
COLLINS: I mean, that raises a question. The Biden campaign looking at these numbers, 24 percent would reconsider their support. I mean, obviously, at this point, they could write somebody in, but the other person that they would logically maybe vote for President Biden?
ASHLEY ALLISON, CNN POLITICAL COMMENTATOR, NATIONAL COALITIONS DIRECTOR, BIDEN-HARRIS 2020 CAMPAIGN: Well, I want to know who those 24 percent are.
COLLINS: Me too.
ALLISON: Right? Especially right now, because I wonder where they were in the primary.
Are they part of that 150,000 that Doug just referenced, that might have voted for someone else in the primary, and are looking for a home, looking for some to do -- someone to do some outreach to?
Or are they just annoyed and frustrated with this narrative around Donald Trump being chaotic and causing all this drama, and they don't want that as the party?
That who those 24 percent are, are really important.
If those folks voted for Donald Trump, in that 24 percent, in 2020, and they write someone in? I'm not saying you throw away votes. But I think the Biden campaign might look at it as a net-neutral. But if they were people who voted for Joe Biden, in 2020, are saying, we aren't satisfied with his performance, and we're looking at Donald Trump? You want, as the Biden campaign, to find those people, and get them back into your column.
If they're people, who just really are not politically engaged, and if they decide to wake up in the morning? You also want to try and move them.
And so, it's really, I don't think they're all the same either. And so, you really need to figure out who they are, and how you move them, and what issue matters to them. And if it really is, they just don't want Trump? Then talk to them and figure out how to get them in your camp.
COLLINS: And Shan?
HEYE: The term, looking for a home, that you said is very important, because after a primary, Republicans and Democrats use sort of the -- sort of the same language. Your voters are going to come home. Most of those voters are going to come home for Donald Trump. So, we're not really talking about 150,000 Republicans in Pennsylvania. But if we're talking about 5,000 or 7,000, in Pennsylvania--
COLLINS: Right.
HEYE: --or Arizona or North Carolina, things get really interesting--
COLLINS: Yes.
HEYE: --especially if we start talking about also third or fourth party candidates.
COLLINS: Yes. But it's been fascinating, as we've seen, even people who have been heavily critical of Donald Trump, people like Bill Barr, the former Attorney General, say that they're still going to support him in November.
HEYE: Yes.
COLLINS: Shan, the other number in this poll. 44 percent of Americans are confident that Trump can get a fair trial in the hush money case that we're watching play out right now.
I mean, Trump himself has been weighing in on the jury, claiming it's 95 percent Democrats, which we can't verify, because you don't ask their party registration.
But what do you make of how the public is viewing what's playing out in the courtroom?
SHAN WU, FORMER FEDERAL PROSECUTOR: Yes, I think the public views the courtroom as a trial courtroom. I think they have a stronger sense that there's fairness involved. I think they have a sense that there's a judge in control, there's going to be a jury of the peers. I mean, 44 percent versus 50 percent versus the majority. But I think unlike the sort of the general public sentiment you're
seeing with the Supreme Court, I think there's still a core group of American outlook that thinks OK, when it gets in front of a jury, that's probably going to be more of a fair outcome.
COLLINS: Well, I mean, speaking -- Trump has been coming out, and now trying to make campaign-style comments, as he walked into the courtroom.
WILLIAMS: Right.
COLLINS: He talked about the GDP, gas prices, Israel protests that are roiling college universities right now.
[21:40:00]
But today, he's -- there's a question of whether he violated this gag order. The judge scheduled a hearing, initially, for next Wednesday. When I noticed, Trump had two events, one in Waukesha, and one in Michigan, in Freeland, Michigan.
Now, the judge has moved that to Thursday. We're not totally clear on the reasoning for that. But it does show the campaign trail versus courtroom argument.
WILLIAMS: Absolutely.
And look, as we've learned quite spectacularly, the court's system operates on a vastly different timeline than the political system, as we'll see with the Supreme Court and that the federal election interference case, that will likely not happen before the election.
Pardon me. Your question?
COLLINS: Well I was just saying--
WILLIAMS: It's so late, we've been doing this.
COLLINS: It was that good of a question.
Well, I was just saying that--
WILLIAMS: I'm sorry.
COLLINS: --Trump has been making this argument that he can't go out on the campaign trail, because he is in the courtroom--
WILLIAMS: Right.
COLLINS: --four days a week.
WILLIAMS: Oh.
COLLINS: They're not in the courtroom, next Wednesday. They weren't supposed to be. And so, they scheduled two campaign events that day. And then, initially, it looked like his gag order hearing was going to maybe throw a wrench in it.
WILLIAMS: Oh, I'm sorry, I forgot.
No, that -- and this is all on the judge, quite frankly, for taking as long as he has on the gag order, and so, for a couple of points.
One, in the context of the former President's civil trial, he actually started behaving better after having been fined, and having the fines be raised. And he paid them and then stopped acting up.
And quite frankly, if this judge were to just simply have the hearing on this, impose whatever fines or fees he's going to, and also admonish the president, in front of the jury -- well it wouldn't be in front of a jury. But in front of the public, that could go a long way to maintaining some semblance of order in the courtroom.
But right now, this is an important issue that is unresolved, and is giving the President a longer leash.
COLLINS: Yes.
WILLIAMS: To keep making statements, which he did--
(CROSSTALK)
COLLINS: Well Doug -- Doug, what about this, what we're seeing, these numbers on 44 percent, are confident he can get a fair trial here.
I mean, it just goes back to the importance of what we saw at the Supreme Court today. If it means that the January 6 case, the effort to overturn the election doesn't happen before November.
HEYE: Look, so much of what we see in politics now is what people want to see happen, or what people think is going to happen, is what they want to see happen. And that poisons our politics, regardless of how you look at it.
But this isn't just about whether or not Donald Trump can go on the campaign trail. If he's in a courtroom all day, he's not going to be able to do the things that any candidate does, in any campaign, for any office. Have meetings.
WILLIAMS: Right.
HEYE: He can't sit down with his campaign staff, and talk about strategies on different states or communications or fundraising, donor maintenance, as you know very well. He can't do any of those things. He's a weekend warrior, in that sense, sometimes a late-night warrior. And that's it.
COLLINS: We'll wait to see what those implications look like.
Just ahead, new details from the trial itself, what we're learning about what was said today. It's a fascinating back-and-forth in the transcript.
[21:45:00]
(COMMERCIAL BREAK)
COOPER: We're continuing to get new details tonight, about what was said, during testimony, in the former President's historic hush money criminal trial.
John Berman has been combing through today's transcript, to give us more in-depth understanding of David Pecker's testimony. What have you found?
JOHN BERMAN, CNN ANCHOR: There are moments, when David Pecker, during his testimony, particularly on direct, with the prosecutor, Josh Steinglass, talks about whether he knew what he was doing was illegal.
And there's this one exchange, where Josh Steinglass, the prosecutor says, were you aware the expenditures by corporations made for the purpose of influencing an election, made in coordination with or at the request of a candidate or a campaign, are unlawful?
David Pecker says, yes.
Steinglass says, did either you or AMI ever report to the Federal Election Commission in 2016 that AMI had made a $150,000 payment to Karen McDougal?
Pecker says no, we did not.
Steinglass asks, why did AMI make this purchase of Karen McDougal's story?
Pecker: We purchased the story so it wouldn't be published by any other organization.
Steinglass: And why did you not want it to be published by any other organization?
Pecker: I didn't want -- we didn't want the story to embarrass Mr. Trump or embarrass or hurt the campaign.
And that's just one of the many times, where Pecker, in direct, basically said this was for the campaign, not for a personal reason, for Donald Trump.
TOOBIN: And it's incredibly important, because as we keep hearing from this gentleman, like what's the crime here?
There's the crime that this is an illegal campaign contribution, that is funneled through -- funneled through AMI, American Media, the National Enquirer, for the benefit of Donald Trump.
AIDALA: How is it -- how is it a campaign contribution?
TOOBIN: Because it's money spent for the benefit of the campaign. Oh, come on. You don't think that's true? ROTH: And Pecker gave some really important testimony, today, about that, where he said that when it got close to the campaign, Trump expressed concern about stories coming out, about allegations of affairs with him, and how it would impact the campaign, as opposed to prior dealings, when Trump expressed concern about the impact on his family.
And so, to shore up this argument that it was a campaign donation, that testimony by Pecker, contrasting how Trump approached and expressed his concerns about these allegations.
AIDALA: That's crucial -- that's crucial evidence. I mean, that is crucial evidence, because as he and I talked about, it has to be substantially affecting the presidential campaign, as opposed to substantially affecting his family. So that's--
(CROSSTALK)
TOOBIN: That $150,000 -- that $150,000 was a lot more valuable to his campaign, than a couple more ads on Jeopardy. I mean, that was a real -- that was a real benefit keeping that story under the cover--
(CROSSTALK)
HONIG: There's an interesting tactical decision that the defense has to make here, which is, do they continue to fight that point? Whether there was some substantial campaign motivation.
Because, to me, it's so clear. Maybe it wasn't 100 percent, but it doesn't have to be, as we talked about last night. It's so clear there was a substantial campaign motivation there. How could there possibly not have been? And that testimony goes right to that point.
[21:50:00]
So, there's -- there comes a point, every good defense lawyer says, I'm picking my battles. I'm not going to fight every single step of this, because you lose credibility. Clearly, they're fighting it. It's their right. It's their tactical decision. But maybe a mistake.
BERMAN: And just to be clear, and we don't have a graphic for this one also, but there were other moments too, where David Pecker says this was for the campaign.
There was that moment, in Trump Tower, where he was being thanked by Donald Trump.
This is an exchange there.
Pecker says, he asked me how I was doing.
I said, I'm OK.
He asked me, how Karen was doing.
And I told, he asked, how's Karen doing? How's our girl? How's my girl? How's our girl doing?
He said -- then I said, she's -- she's writing her articles. She's quiet. She's easy. Things are going fine.
So he said, I want to thank you, for handling the McDougal situation. Then he said I want to, he also said, I want to thank you for the doorman story, for the doorman situation.
And the question from the prosecutor is, and what did you understand Mr. Trump to be thanking you for, regarding the Karen McDougal story and the doorman?
I felt he was thanking me for buying them, and for not publishing any of the stories, and helping the way I did.
And why was he so appreciative, asked the prosecutor?
The answer, he said that the stories could be very embarrassing.
Question. What did you understand that to mean?
Answer. I felt that it was going to be very embarrassing to him, his family, and the campaign.
TEMIDAYO AGANGA-WILLIAMS, FORMER SENIOR INVESTIGATIVE COUNSEL, JANUARY 6TH COMMITTEE, FORMER FEDERAL PROSECUTOR: The point there too, Elie, why he's not conceding?
HONIG: Yes.
AGANGA-WILLIAMS: It's because if his lawyers conceded at -- conceded now, what do they have left?
HONIG: Yes.
AGANGA-WILLIAMS: And I think even David Pecker started telegraphing, what we're going to see in the second half about business records, about Trump, the micromanager, right?
ROTH: Right.
AGANGA-WILLIAMS: He's talking about Trump, focusing on the payment, focus on invoices, not the, what I kind of call the CEO-in-the-clouds defense, where I'm above it all. I don't know the details. But the opposite. A man is focused on the details. And man is focused on where his money is going. And someone who's not allowing Michael Cohen the authority to make decisions about the money is going.
AIDALA: Which flies -- which that narrative, which they're trying to put forth, with a very well-prepared witness.
As I said, my first question would have been, how many times did you meet with the prosecutor, 40 or 50, to prepare your testimony?
It flies in the face of everything we heard of Donald Trump's presidency. He wasn't a detail-oriented guy. HONIG: Right.
AIDALA: He didn't want to read thick memos. He just wanted to sit with people, and hear like the top, the headlines. He didn't want the details.
So now, they're try to paint the picture of a totally different guy than we heard about for four years.
COOPER: Yes.
AGANGA-WILLIAMS: Yes.
COOPER: But the difference is, I mean, this is, you know, there's a big difference between being interested in the mundane details--
AIDALA: Between what's going on in Israel?
COOPER: --interested.
AIDALA: Between what's going on in Israel?
COOPER: Yes, of global affairs.
AIDALA: And what's going on--
(CROSSTALK)
COOPER: And the woman that you slept with--
AIDALA: --and what's going on in, and a $150,000?
COOPER: --who maybe selling a story--
AGANGA-WILLIAMS: And I do think that (ph).
COOPER: --and may inform.
HONIG: But I think we're right, where I would go to your question, if I was the defense lawyer.
COOPER: Yes.
HONIG: I think focusing on was Donald Trump, part of the falsification, the accounting.
AGANGA-WILLIAMS: Yes.
HONIG: And there's a tape coming up in this trial, the secret tape that Michael Cohen made of his client, Donald Trump. It's really going to help the defense on that. And what we've heard it, we've played it here many, many times.
But in essence, Trump is sort of clueless. He knows their paying. He's very much on board with paying, to silence. It's Karen McDougal, they're talking about. And he just keeps going, I don't know, what are we getting?
And Cohen says, leave it to me, and Allen. I got it. No, no, no, you don't worry. I'm handling it.
That's the crumb -- that would be what I would argue.
TOOBIN: And I--
ROTH: Yes but--
TOOBIN: I'm sorry. Please.
ROTH: But the problem is, at some point, it starts to look like it's just not credible that you know, I can see this much, and I can see this much, and I -- but I -- but I won't concede this, right? I was involved in the scheme that I'm now conceding with. It can't be but--
HONIG: I think it's more credible.
ROTH: Arguably.
HONIG: Yes.
ROTH: But at some point, the notion -- so I was involved in the scheme, to make an illegal campaign donation. And I was involved in the scheme to sort of, to pay off Michael Cohen. But I wasn't involved in the part about how it was booked in my company's records. Now, arguably, that is the defense that is their best defense.
But at some point, if he's involved in all the other parts of the scheme, I think it's reasonable to say, well, maybe he was involved in this part of it too.
COOPER: If he was checking to make sure that the payment was made in cash, that does sort of point to--
AGANGA-WILLIAMS: Point to, yes.
COOPER: --a level of interest in the sort of the nitty-gritty of the details.
John, how did the defense poke holes, or try to poke holes, in Pecker's recollection of these?
BERMAN: One of the ways -- the recollection. Well, they've two -- there're two different ways they try to poke holes in the prosecution here. One was to talk about maybe David Pecker's memory.
The other, and you talked about this earlier, was to suggest this is all standard operating procedure. This whole scheme of buying stuff? It's just what the Enquirer did. And there's an exchange to that effect.
Emil Bove, the defense attorney says, this relationship that you had with President Trump, this mutually-beneficial relationship, you had similar relationships with other people; right? David Pecker says, I did.
Meaning that there were other people for which you would provide a head's up if there was a potentially negative story; correct?
Pecker says, yes.
Bove: And other people that you would promote in the National Enquirer because it was good -- and it was good -- it's good for you and good for them; right?
Pecker says yes.
Bove: And that included celebrities; right?
Pecker: Yes.
And most celebrities wanted positive treatment in all publications; right?
Pecker: They do.
And you had a relationship like this with other politicians; correct?
Pecker says yes.
And you are aware that many politicians worked with the media to try to promote their image; right?
Pecker says yes.
And promote their brand?
Pecker says yes.
[21:55:00]
To facilitate their campaign; correct?
Pecker says yes.
Standard operating procedure as you understand it; correct?
David Pecker says, yes.
And in fact, in another place, David Pecker says the first time he heard the phrase catch-and-kill, was from investigators, when they were asking him about this.
They say before this investigation started, you had not heard the phrase, catch-and-kill?
David Pecker says, that's correct.
COOPER: Yes.
TOOBIN: I thought that was a very skillful cross-examination.
BERMAN: And a good read, right?
AIDALA: Very good.
TOOBIN: And even better, John. You should -- you should have taken that law school.
COOPER: Yes.
TOOBIN: But anyway.
But isn't the answer so what, ultimately? He has covered up for other celebrities. They weren't running for president. He didn't pay $150,000 to cover up--
AIDALA: Well one was running for governor, right? Arnold Schwarzenegger?
TOOBIN: He ran for governor, at some point. But we don't know when or what he did for Arnold Schwarzenegger. This was so different from all those other circumstances.
AIDALA: I'm not -- like I'm not saying it wrong. From what I was told, the people in the courtroom today, it was very similar what he did for Arnold Schwarzenegger. And, in fact, there was a lot of examination today, on Arnold Schwarzenegger, and what he had done for him. So, we'll see.
COOPER: Thank you, everyone.
Our special primetime coverage of these two big Trump trials continues next.
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