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The Whole Story with Anderson Cooper
The United States v. Donald J. Trump. Aired 8-9p ET
Aired February 18, 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]
ACOSTA: See you soon, and I'm going to -- to Shan, who brought this earlier to thank me for having him on the show, thanks to Shan and everybody who came on this weekend. Had a lot of the regulars that we have on every weekend, this weekend, and it was -- it meant a lot to me. Thanks so much for tuning in.
In the meantime, up next is "THE WHOLE STORY WITH ANDERSON COOPER" unpacking the federal election interference case against former president Donald Trump.
Again, thanks to all of you for watching on the weekends. Catch me in the mornings coming very soon right here on CNN. Have a good night, everybody.
ANDERSON COOPER, CNN ANCHOR: Welcome to THE WHOLE STORY. I'm Anderson Cooper.
Last week, former President Donald Trump asked the Supreme Court to take up the issue of presidential immunity, further delaying his federal criminal trial related to the 2020 election and the January 6th attack on the Capitol.
Now the claim was already heard and rejected by a federal appeals court. It's now up to the highest court to decide to take the case or to let the ruling stand and clear the way for this trial to begin.
Now the timing is crucial because the former president is likely to become the Republican nominee. And he wants to delay the trial until after voters head to the polls in November. He's charged with four counts of obstruction and conspiracy.
But what exactly is he accused of doing to subvert the election? And is it his actions that matter or his intent?
Over the next hour, CNN anchor and chief legal analyst, Laura Coates, will lay out the facts of the federal indictment, most of which are undisputed by the former president and his attorneys, and examine the strengths and the weaknesses of the case against him.
(BEGIN VIDEOTAPE)
JACK SMITH, DOJ SPECIAL COUNSEL: Today an indictment was unsealed, charging Donald J. Trump with conspiring to defraud the United States, conspiring to disenfranchise voters and conspiring and attempting to obstruct an official proceeding.
The attack on our nation's capital on January 6th, 2021, was an unprecedented assault in the seat of American democracy. It was fueled by lies.
LAURA COATES, CNN ANCHOR AND CHIEF LEGAL ANALYST (voice-over): In August 2023, less than a year after Attorney General Merrick Garland appointed Jack Smith as special counsel to investigate Donald Trump, the former president was indicted on federal felony charges stemming from his efforts to overturn the 2020 presidential election.
DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: If you count the legal votes, I easily win.
Numerous times we found glitches and every single time that glitch went 100 percent to Biden.
COATES: Trump has pleaded not guilty to all charges.
MARCUS CHILDRESS, INVESTIGATOR, JANUARY 6TH COMMITTEE: This indictment told a very cohesive story that former President Trump was responsible for the conspiracy to tell American public that the election had been stolen.
TRUMP: Big difference between losing and winning and having it stolen.
CHILDRESS: That he used various mechanisms to push forward that big lie and that had led to the attack on the Capitol.
COATES: Out of the gate, page one of the federal criminal indictment begins with a statement that Donald Trump has spent the past three years denying.
HARRY LITMAN, FORMER U.S. ATTORNEY: The very first thing they said, Donald Trump lost the election. That's the first statement.
COATES: And even before outlining the criminal charges, the special counsel chose to address Trump's claim that the government has infringed on his First Amendment right to free speech.
TRUMP: The case is a ridiculous case. It's a First Amendment case.
CHILDRESS: A special counsel makes it very clear that the words that former President Trump said he is allowed to say them, but they can be used as evidence to show intent. They can be used in court.
COATES: Trump is charged with four felonies emanating from one set of facts established in the criminal indictment.
ELIE HONIG, CNN SENIOR LEGAL ANALYST: The first one is a conspiracy to defraud the United States, essentially a conspiracy to steal the election from the United States and from the voters. The second and the third charges are obstruction, and conspiracy to commit obstruction, and the gist there is that Donald Trump's goal was to try to block or delay the counting of the electoral votes in Congress. Then the fourth charge is a conspiracy against rights, which specifically means a conspiracy to deprive the American voters of their right to vote because he tried to steal an election that he actually had lost.
TRUMP: We fight, we fight like hell.
COATES: One crime Trump has not been charged with?
TRUMP: We will stop the steal.
COATES: Insurrection.
HONIG: I think Jack Smith wanted to keep his charges as straightforward and plain as possible. I think he realized that insurrection is harder to prove than obstruction or conspiracy. You'd have to approve this intent to overthrow the United States government.
COATES: Jack Smith's indictment has only four counts. What's behind that?
[20:05:00]
LITMAN: Straight to the heart like a cannonball and the heart here is Donald Trump, not the people around him, not the people in the states.
COATES (voice-over): Which may explain why the indictment includes six unnamed unindicted co-conspirators from Trump's orbit. Even though the co-conspirators are not named, the descriptors are specific enough to clearly reveal most, if not all, of their identities. There are other reasons why Jack Smith may have declined to pursue indictments against the co-conspirators.
HONIG: I do think one of the goals that Jack Smith had in charging the case the way he did is to try to flip people.
COATES: Others like Tim Parlatore, one of Trump's former attorneys, point to speed.
TIM PARLATORE, FORMER TRUMP ATTORNEY: Jack Smith clearly wants to get this case tried before the election. There's no way that Jack Smith is going to add a co-defendant to this case because that will definitely push the trial out past the election.
COATES: With this trial time is of the essence. Donald Trump is the leading Republican candidate for the upcoming presidential election in November.
HONIG: Jack Smith for all the pushing he's done to try this case as quickly as possible, he has never and I believe will never acknowledge that he wants to try Trump specifically before the election. I think he doesn't want that appearance of anything that might be interpreted as being political.
COATES: The 45-page indictment alleges in stunning detail exactly what Donald Trump did to remain in power. Much of which the American public is familiar with from the January 6th Committee's investigation.
UNIDENTIFIED FEMALE: President Trump relentlessly pursued multiple --
ADAM KINZINGER, FORMER JANUARY 6TH COMMITTEE MEMBER: The Department of Justice was able to take what we did and they had some more tools. They had some more ways to compel witnesses, and I think they have a lot more information.
LITMAN: Everything we've been learning has been in sort of dribs and drabs and reports with the exception of when Jack Smith file things.
BORIS SANCHEZ, CNN ANCHOR: Special Counsel Jack Smith plans to present evidence.
COATES: Filings have tipped the public off to previously unknown aspects of the case, like allegations that a Trump campaign employee sought to start a riot to, quote, "obstruct the vote count in Detroit.
Is it safe to say that the indictment is the tip of an iceberg and what they're really preparing to present at trial?
LITMAN: I think it is safe to say that the indictment is exactly that, that it gives us a little bit of a vantage point. He wanted to tell a story, but I think at juncture after juncture, Smith has erred on the side of staying sphinx like and not revealing.
COATES (voice-over): Which tracks with the special counsel's reputation.
HONIG: I've never seen a prosecutor who hates the cameras as much as Jack Smith. And I mean that as a compliment. The platonic ideal of the prosecutor would be somebody who has no interest in public profile, who just wants to keep his head down and do the job. I think Jack Smith is that. He's certainly projecting that.
RYAN GOODMAN, FORMER SPECIAL COUNSEL, DEPARTMENT OF DEFENSE: Jack Smith by reputation is a hard-driving prosecutor.
COATES: Ryan Goodman is a former special counsel at the Department of Defense, and a professor at NYU.
GOODMAN: He has gone after political corruption on both sides of the aisle, Democrats and Republicans. He's also somebody who served as a war crimes prosecutor and has indicted a sitting president in Kosovo. So he's that kind of an individual that moves fast and moves aggressively. At the same time that also might come with some risks.
COATES: Why is there some criticism that he overreaches?
HONIG: Well, if you look at Jack Smith's history, his three highest profile cases before this, all of them have failed, either at the trial level or the appellate level. And so the criticism is while he's overeager, he's over anxious.
COATES: What is going to be one of the toughest hurdles for Jack Smith's team to overcome?
PARLATORE: Everything in this case will turn on what Donald Trump's state of mind is and whether there was corrupt intent. All the facts they played that on national television. The speeches have been played millions of times.
TRUMP: Here in Georgia, there were tens of thousands of illegal votes cast.
PARLATORE: So there's not going to be that much in the way of disputed issues of fact, but it's more of an interpretation.
TRUMP: Our election was so corrupt that in the history of this country, we've never seen anything like it.
PARLATORE: Ultimately the way that this case is going to have to be framed to a jury is the difference between trying to fraudulently overturn the will of the people versus trying to do everything in your power to ensure that the will of the people was accurately counted.
TRUMP: We know there was massive fraud.
COATES (voice-over): The prosecution alleges that Trump spread prolific lies about the election. Lies they say he knew were false. The indictments cites an exhaustive list of those surrounding the former president who told Trump that his claims were untrue. Even Mike Pence, Trump's loyal vice president, told the then president he had seen no evidence of outcome determinative fraud.
[20:10:07]
Why is that so important?
CHILDRESS: It's important to lay out that the former president was told that he had lost the election because it goes back to that intent piece. It's important for the special counsel to establish that former President Trump knew or that are reasonable person would have known that they lost the election.
TRUMP: And we're going to the Capitol.
KINZINGER: It is central because the fact that he knew means that all these things that happened leading up to January 6th and on January 6th had an intended goal, had an intended purpose, had an intended outcome. And that purpose was frankly the overthrow of the federal government and the invalidation of a legitimate election by the people of the United States of America. That's chilling.
COATES (voice-over): Coming up.
JOHN EASTMAN, FORMER TRUMP LAWYER: And the legislature gets to do what it wants.
ELENA PARENT (D), GEORGIA STATE SENATE: He had this rogue legal theory.
RUDY GIULIANI, FORMER TRUMP PERSONAL LAWYER: There's overwhelming proof of fraud.
COATES: The pressure campaign hits the swing states.
PARENT: It was a total ambush and I was livid.
(COMMERCIAL BREAK)
PARENT: There was a ton of pressure on my colleagues on the Republican side of the aisle to start in motion something that would lead to Donald Trump being able to overturn the election.
COATES: By the time Georgia State Senator Elena Parent attended a meeting at the state capitol on December 3rd, 2020, Joe Biden had already been declared the winner. She wondered why her peers across the aisle had hastily convened this meeting.
PARENT: I feared that we were going to be walking into an amplification of disinformation and conspiracy theories. And the day featured both.
UNIDENTIFIED MALE: Call the Subcommittee of the Judiciary to order.
COATES: Ostensibly the meeting was called to address allegations of fraud in the presidential election. The reality was much darker.
Were you expecting to see members of Trump's legal team at that meeting?
PARENT: Not at all. It was a total ambush and I was livid.
UNIDENTIFIED MALE: The election must be vacated and cannot be allowed to stand.
COATES (voice-over): Members of the president's legal team pushed wild, unsubstantiated claims. Some of the most shocking were shown in a video. Trump's team falsely claimed that video was evidence of fraud from election night ballot counting at the State Farm Arena in Atlanta.
UNIDENTIFIED FEMALE: Once everyone is gone, coast is clear, they are going to pull ballots out from underneath a table.
COATES: And former New York City mayor Rudy Giuliani was there supporting the claims.
[20:15:03]
GIULIANI: Well, I don't have to be a genius to figure out what happened.
COATES: As the meeting unfolded, Trump tweeted about the hearing, amplifying the lies to his tens of millions of followers. And then another member of the Trump legal team pushed a theory that took the meeting into dangerous new territory.
EASTMAN: My name is John Eastman. I'm a professor of constitutional law and former dean. PARENT: He had this rogue legal theory that if the legislature felt
odd about the results of the election, it was our duty to seize the decision on who Georgia's electoral votes should go to.
Correct me if I'm wrong here, your argument is that essentially we have a failed election that would require the legislature to step in and assign electors. Am I correct?
EASTMAN: Yes.
COATES: And that's when the purpose of the meeting became clear.
EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: They thought that they could get officials there to call a special session, throw out their electors and appoint a on alternate set of electors or fake electors.
COATES: You're an attorney?
PARENT: Yes.
COATES: What did you make of that legal argument?
PARENT: I thought it was totally bogus because it was very clear under Georgia law that we had no such power.
COATES (voice-over): During the hearing, Parent tweeted about being forced to listen to the Trump team's conspiracy theories.
PARENT: All of a sudden, I was going viral in these right-wing segments of Twitter.
COATES: You were being threatened.
PARENT: Oh, yes, right away. Right away. Death threats right away.
COATES (voice-over): State Senator Parent wasn't alone defending Georgia's free and fair election. Other Georgia officials like Governor Brian Kemp and Attorney General Chris Carr fielded in treaties from the president. Audio from Secretary of State Brad Raffensperger's hourlong phone call with the president was leaked.
TRUMP: All I want to do is this. I just want to find 11,780 votes, which is one more than we have, because we won the state.
GEOFF DUNCAN (R), FORMER GEORGIA LIEUTENANT GOVERNOR: You got to see a window into Donald Trump's heart. He was willing to just push without facts or figures an elected official to do something illegal.
COATES: According to the indictment, Georgia wasn't the only state targeted by Trump and his allies. Across other crucial swing states similar effort to overturn the election were occurring. Time and time again Trump and his cohort were stymied by local politicians, many times fellow Republicans like former Arizona House Speaker Rusty Bowers, who got a call from Trump and Giuliani.
RUSTY BOWERS (R), FORMER ARIZONA HOUSE SPEAKER: He said that there is a legal theory or a legal ability in Arizona that you can remove the electors of President Biden and replace them. And I said, I've never heard of any such thing.
COATES: Trump also invited Michigan Republicans to the White House where he raised already debunked theories about fraud in their state.
UNIDENTIFIED MALE: Did you make the point to the president that you were not going to do anything that violated Michigan law?
MIKE SHIRKEY (R), MAJORITY LEADER, MICHIGAN STATE SENATE: I believe we did. I think that the words that I would have more likely used is we are going to follow the law.
COATES: When it became clear, the pressure on the state and local officials was going to be unsuccessful, Trump and his allies set their sights on a new goal, replacing the Biden electors with those who would vote for Trump.
GOODMAN: At some stage the fake electors plot might have actually been somewhat legitimate.
COATES: While assisting with Trump campaign's legal efforts in Wisconsin. an attorney by the name of Kenneth Chesebro wrote a memo. The memo advocated electors for Trump should meet and cast votes for the then president, while the legitimate electors were doing the same for Biden.
GOODMAN: They wanted to file these documents on the idea that in case Donald Trump were to prevail in litigation then they could submit those certificates to Congress. The problem is that it's switched at a certain point from contingent electors to false electors.
COATES: State and federal judges dismissed more than 50 lawsuits presented by Trump's team challenging the election. Instead of the Trump electors voting as a contingency should court cases prevail, court cases became the cover to organize the electors.
[20:20:03]
GOODMAN: It was a farce. It was just to keep the image up of the idea that this is being litigated in court and therefore it's legitimate and it was not legitimate. They knew that they weren't going to win.
PEREZ: The campaign was central to this effort because you can't pull this off without the apparatus of the political campaign.
COATES: Four days before the electors were scheduled to vote, Kenneth Chesebro sent the targeted states a streamlined version of the fake electors memo, instructions and bogus elector certificates he had drafted.
GOODMAN: A lot of these false electors at the state level were duped. They were told that it was contingent on litigation, but they were being lied to.
UNIDENTIFIED MALE: To facilitate the voting -- COATES: When legitimate electors in each state gathered on December
14th, 2020 --
UNIDENTIFIED MALE: All 16 electors cast their ballots for Joseph R. Biden.
COATES: Fake electors met in seven swing states to falsify votes for Trump.
UNIDENTIFIED FEMALE: From the state of Arizona, we hereby certify the following.
DUNCAN: This is an organized effort to do something illegal to change the outcome of reality. If somebody would have produced one ounce of legitimate proof that the election was rigged, all this is -- just going to go melt away in a heartbeat. But they haven't.
COATES: Chesebro has since pleaded guilty to one felony in Georgia for his role in the fake elector scheme and is cooperating in another case in Nevada.
Up next, the Justice Department under siege.
PEREZ: Donald Trump was so desperate to hold on to power that he didn't care about the rules.
(COMMERCIAL BREAK)
[20:26:33]
COATES: At the Department of Justice, civil servants work to follow the law wherever it may lead without prejudice or improper influence. But according to Jack Smith's indictment Donald Trump attempted to wield that influence in an effort to hold onto the presidency.
How do you view the level of pressure that Trump placed on the Department of Justice?
PEREZ: There's never been anything like it because Donald Trump was so desperate to hold onto power that he didn't care about the rules.
COATES: But leadership at the Department of Justice did care about the rules and was not bending to the pressure.
CHILDRESS: Leaders in the Department of Justice told the former president that there was no outcome determinative fraud for them to launch an investigation to overturn the election. So as part of the pressure campaign on the Department of Justice, this is where Mr. Jeffrey Clark kind of rose to prominence.
PEREZ: Jeffrey Clark is an environmental lawyer, lower-level person at the department. He was a completely unremarkable figure.
COATES: At a January 6th Committee hearing, former acting attorney general, Jeffrey Rosen, testified about President Trump's call to him on Christmas Eve 2020. KINZINGER: Did he mention Jeff Clark's name?
JEFFREY ROSEN, FORMER ACTING ATTORNEY GENERAL: Yes. It was something about, did I know Jeff Clark or did I know who he was or something like that. I was quizzical as to how does the president even know Mr. Clark.
COATES: Rosen confronted Clark, directing him to immediately stop having unauthorized contact with the White House, but the very next morning, Clark spoke on the phone again with Donald Trump. Hours later, Trump phoned Rosen, who eventually asked then acting deputy attorney general, Richard Donoghue, to join the call.
KINZINGER: So during this conversation, did you take handwritten notes directly quoting the president?
RICHARD DONOGHUE, FORMER ACTING DEPUTY ATTORNEY GENERAL: I did.
KINZINGER: So let's now put up the notes where you quote the president. "Just say the election was corrupt and leave the rest to me and the Republican congressmen.
COATES: He wanted them to plant a seed.
PEREZ: He wanted them to at least leave the door open.
COATES (voice-over): They told the president, as long as they were in charge, they would not publicly back his false election fraud claims. So Trump tried to ensure that they were no longer in charge. He began to unveil his plan to appoint a new acting attorney general. "People tell me Jeff Clark is great. I should put him in."
The rest of the dangerous scheme would be revealed to Rosen and Donoghue the very next day. In an e-mail sent to them by Trump's alleged co-conspirator for Jeffrey Clark that included this proposed letter.
PEREZ: This is a letter that he wanted them to send to the elected officials in Georgia. The idea was to raise questions about the election results in Georgia and suggest to the governor there to call a special session.
COATES: How did Rosen and Donoghue respond to that letter?
PEREZ: They were shocked.
CHILDRESS: These were individuals who are actually responsible for looking into election security or election fraud, or crimes of this nature.
[20:30:05]
So for Mr. Clark, as an environmental lawyer, to be willing to say this in a letter I believe the special counsel probably has evidence directly on point just like we collected in the January 6th Committee that he knowingly knew them to not be true. COATES: What do you think the effect of that letter would have been in
your legislative branch?
PARENT: It would have been another breaking the dam or another domino falling and the question I have is, what breaking the dam or domino that falls over, which is the one that's going to make the rest of them go?
COATES (voice-over): Disturbed by the letter, Donoghue immediately responded to Clark, writing, quote, "This would be a grave step for the department to take and it could have tremendous constitutional, political, and social ramifications for the country."
KINZINGER: You imagine as a local elected official or a local official getting an official letter from the Department of Justice stressing that there were accusations and frankly evidence of corruption or evidence of votes being stolen. It would lead into an utter panic.
COATES: On New Year's Eve, Trump summoned Rosen, Donoghue, and others to the Oval Office. Again, he raised claims of election fraud. And once again those Justice Department officials told him those claims were false. Trump didn't hide his anger.
DONOGHUE: Toward the end of the meeting, the president again was getting very agitated and he said people tell me I should just get rid of both of you. I should just remove you and make a change in leadership, put Jeff Clark in, maybe something will finally get done.
COATES: It wasn't long before Trump did offer Clark the position of attorney general. And that's when Clark tried one more time to get Rosen and Donoghue to sign the draft letter he wanted sent to the Georgia state officials. A letter full of lies.
KINZINGER: So you still refused to sign and send that letter, I take it?
ROSEN: That's right. I think Mr. Donoghue and I were both very consistent that there was no way we were going to sign that letter.
COATES: Undeterred, Clark moved forward with the scheme to keep Trump in office. He accepted the president's offer to become acting attorney general on January 3rd. According to the indictment of Donald Trump later that same afternoon the deputy White House counsel warned Clark that there was no evidence of election fraud, and if Trump remained in office, nonetheless, there would be, quote, "riots in every major city in the United States." To which Clark responded, quote, "Well, that's why there's an Insurrection Act."
That evening there was a contentious three-hour meeting with President Trump in the Oval Office. Attendees included White House lawyers, Clark, Donoghue, and Rosen.
ROSEN: So after some preliminaries the president turned to me and he said, well, one thing we know is you, Rosen, you aren't going to do anything. You don't even agree with the claims of election fraud. And this other guy at least might do something. DONOGHUE: The conversation at this point was really about whether the
president should remove Jeff Rosen and replace him with Jeff Clark, and everyone in the room I think understood that that meant that letter would go out.
COATES: Then Trump asked.
DONOGHUE: Suppose I replace him, Jeff Rosen, with him, Jeff Clark, what would you do? And I said, Mr. President, I will resign immediately. And I said, Mr. President, within 24, 48, 72 hours, you're going to have hundreds and hundreds of resignations of the leadership of your entire Justice Department because of your actions.
KINZINGER: The whole plan here was to put enough doubt in people's minds to give credence to possibly overturning the election. When all of the Department of Justice officials basically threatened to resign, the former president realized that, backed off of that plan, and then turned his attention to January 6th.
COATES: Up next.
KINZINGER: Donald Trump lied to gin up his people.
TRUMP: If you don't fight like hell, you're not going to have a country anymore.
KINZINGER: He knew when you're surprised and upset, you're much more likely to commit violence.
(COMMERCIAL BREAK)
[20:39:11]
TRUMP: The evidence of the fraud is monumental and more is coming out.
COATES: After weeks of spreading lies that the election was stolen, and creating anger and resentment among his supporters, Trump sent this tweet in December. "Big protest in D.C. on January 6th. Be there. Will be wild."
SARAH MATTHEWS, FORMER DEPUTY PRESS SECRETARY, TRUMP ADMINISTRATION: Now we know there was more meaning behind those words that he used. There was a very meticulous planning that was happening behind the scenes leading up to January 6th.
COATES: Four days later, Trump retweeted and later deleted a memo titled "Operation Pence Card." John Eastman drafted a similar plan to have Mike Pence reject the election results on January 6th. The day Congress was set to certify Biden's electoral college victory.
[20:40:06]
KINZINGER: John Eastman came up with a really kind of crazy legal theory where he tried to convince the vice president that he had the authority to basically declare which slate of electors is accurate or to not accept the slate of electors. The Constitution is very clear that he doesn't have that authority.
COATES: But for Trump, it was the last desperate attempt to stay in the White House.
PEREZ: There were multiple steps here. I mean, part of it was to declare that there was fraud and then if you didn't do that to send it back to the states where he felt Republican legislatures would appoint new electors that would then vote for him. If none of that work, he knew that he was going to have supporters coming into town to try to pressure Pence to do one of these things.
COATES: But the president began his pressure campaign immediately. Trump tried to coerce Pence on several private phone calls, even on Christmas Day, and then there was the public pressure on Pence.
TRUMP: He's a great guy. Of course if he doesn't come through, I won't like him as much.
COATES: On January 5th, Trump tweeted, "The vice president has the power to reject fraudulently chosen electors." And he released a knowingly false public statement that, "The vice president and I are in total agreement."
KINZINGER: Donald Trump lied to gin up his people because he knew what Mike Pence was going to do and he wanted them to be surprised and upset because when you're surprised and upset you're much more likely to commit violence, or to do extreme things.
COATES: Trump increased his pressure on Pence with tweets starting at 1:00 a.m. on January 6th. "If Vice President Mike Pence comes through for us, we will win the presidency."
PEREZ: Based on for years of seeing Mike Pence being very loyal, I think Donald Trump believed that in the end he could get Mike Pence to fold.
UNIDENTIFIED MALE: We're taking this country back.
COATES: As his supporters gathered for the rally, Trump repeated these dangerous lies.
TRUMP: All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.
KINZINGER: Then Mike Pence puts out his statement that says he does not have the authority to do anything.
COATES: The statement came out while the president was on stage urging his supporters to march to the Capitol.
TRUMP: We fight like hell. And if you don't fight like hell, you're not good to have a country anymore.
MATTHEWS: He knows that these people were his most loyal followers, that hang on every word of his. And he told them to march to the Capitol.
COATES: After his speech, Trump returned to the White House.
PEREZ: He was watching the television coverage. He was impressed with how big this crowd was.
COATES: When rioters breached the Capitol Trump's advisers told him to send out a message to calm the crowd. He refused. Sarah Matthews was Trump's deputy press secretary at the time.
At what point did you to begin to realize how dangerous this has become?
MATTHEWS: We started seeing those initial interactions between some of the people arriving to the Capitol, and that that was the first sign of, OK, wait, this could really escalate and this could escalate quickly.
COATES (voice-over): At 2:24 Trump tweeted, "Mike Pence didn't have the courage to do what should have been done to protect our country."
MATTHEWS: He was putting a target on his own vice president's back.
CHILDRESS: We thought of that as pouring gasoline on the fire, right. We already had a situation that was getting out of control. And the president's tweet just really inflamed it even more.
KINZINGER: We can pinpoint the second that came out and the violence massively accelerated.
COATES: One minute later at 2:25 the Secret Service was forced to evacuate Pence to a secure location.
MATTHEWS: He did not care about his safety. And the thing that kills me is that the vice president's family was there.
KINZINGER: At one point, the crush of the mob was only 15 feet away from Mike Pence and his small entourage.
CROWD: Hang Mike Pence! Hang Mike Pence!
KINZINGER: Not only did he just put out that tweet, he also told a witness who testified to us that in fact Donald Trump said, well, maybe he should be hung.
COATES: For more than three hours, Trump refused to tell rioters to leave the Capitol despite repeated pleas from his senior advisers.
KINZINGER: What did he do? Absolutely nothing. He didn't do anything for 187 minutes until he knew he couldn't win.
TRUMP: We had an election that was stolen from us.
COATES: The president finally relented at 4:17 p.m. when he released a video telling the rioters to go home. TRUMP: This was a fraudulent election. But we can't play into the
hands of these people. We have to have peace. So go home. We love you. You're very special.
CHILDRESS: Former President Trump was responsible for the big lie, was responsible for the conspiracy, which led to the violence on January 6th.
COATES: Even in the aftermath of the deadly attack on the Capitol, Trump and his co-conspirators were still trying to convince lawmakers to overturn the election.
MATTHEWS: I think that they were using the violence and chaos to their advantage to have more time to make calls to lawmakers and try to get them to go along with their scheme.
COATES: Coming up.
JOHN DEAN, FORMER NIXON WHITE HOUSE COUNSEL: The rule of law is at stake. The American democracy is at stake. We have never played at higher stakes than this.
(COMMERCIAL BREAK)
[20:51:00]
COATES: When you look at where we are, I mean, we're standing in front of the White House, the stakes in this trial are enormously consequential.
DEAN: The rule of law is at stake. The American democracy is at stake. We have never played at higher stakes than this.
COATES (voice-over): And John Dean would know.
DEAN: There was a cancer growing on the presidency.
COATES: The former White House counsel turned cooperating witness in the Watergate scandal is remembered as the man who brought down former president Richard Nixon. At the time it was arguably the biggest scandal the presidency had ever faced.
You said it once that you thought that the darkest days were behind us after the Nixon-Watergate scandal. Is that still true?
DEAN: It is not true. I didn't think we would ever go back to worse than Watergate, but we are there today. We have never been more threatened.
COATES: How strong is this case?
HONIG: I think this is a good case, a strong case, but not necessarily an overwhelming case. The way these laws are being applied is novel and it's not Jack Smith's fault. It's because we've never seen anything like this.
COATES (voice-over): In this trial, most of the facts aren't up for debate.
CHILDRESS: Whenever you're doing any criminal case, intent is always a big part of it. Proving intent is always difficult.
DAVID SCHOEN, FORMER TRUMP ATTORNEY: The indictment rises and falls on whether the jury believes that Donald Trump honestly thought there might have been election fraud or some election irregularity. Knowing him as well as I do and in talking to him many times I believed that he firmly believed that there were election irregularities that made a difference in the election.
HONIG: What Jack Smith is going to have to show is that Trump knew he lost. The way you have to do that is primarily in this case with testimony from people around him. I think we're going to see a parade of witnesses at this trial taking the stand, saying, I told Donald Trump no unequivocal terms he had lost this election.
COATES: Is it going to be difficult to meet this burden of proof?
CHILDRESS: I never tried a case that wasn't difficult and that's the way our system was meant to be. Taking away somebody's liberty should be hard and that beyond a reasonable doubt is a tough burden to reach.
COATES: What do you think is Trump's strongest defense?
PARLATORE: I think that a laser-focused defense on he believed that there was fraud.
TRUMP: You know, I've had two elections. I won both of them. It's amazing.
PARLATORE: And that every action he took was based on what he believed his obligations as the chief executive to ensure that the laws are faithfully executed, to ensure that the will of the people was accurately counted. I think that if he keeps a laser-focus on that, that is where the case is winnable at trial.
SCHOEN: I think the advice of counsel is an important defense in the case. I can assure you he had many people, lawyers and investigators and otherwise telling him they absolutely could prove that there was election fraud. And I think he was entitled to trust those people whose counsel he chose to trust.
GOODMAN: I don't think that's going to end up working for him.
COATES: Why?
GOODMAN: Many other lawyers that he would point to are his co- conspirators so if your lawyers are involved in a conspiracy that's not going to work for you as a legal defense.
LITMAN: The law is very specific about this. If that's what you want to say, advice of counsel, you need to show everything you learned. That means not just Eastman, but there were lawyer after lawyer within his inner circle who told him there's nothing here. You can't go forward. And all the evidence suggests that Trump just kept going and going and going until he could get the answer he wanted.
COATES (voice-over): There has been a sprint by the prosecution to have this trial heard as soon as possible.
HONIG: I think Jack Smith probably believes that the American public deserves an answer before they go to the ballots and decide who they're voting for.
COATES: And while there is an argument for the public to know the verdict before they cast a ballot, there's also the issue of what happens if the trial is delayed and Trump is re-elected.
[20:55:09]
LITMAN: The president can simply command the Department of Justice close down this case. And I don't need to give you a reason.
COATES: So if a trial is going on and Donald Trump is inaugurated, the Department of Justice could simply dismiss the case even in the middle of trial?
LITMAN: Not only could they, they would be ordered to. The plug is pulled, all power goes down. It's over.
COATES (voice-over): Even if the trial moves forward, Trump can still be found guilty and win reelection. And as president, he may still have one get-out-of-jail-free card.
HONIG: He might try to pardon himself. That's never happened before. We don't actually know whether a president can or cannot do that. Pardon power doesn't have any specific limitation.
COATES: What happens if Donald Trump loses and he's convicted?
LITMAN: It's a great question and in a way the ultimate question. In theory he's a normal citizen.
COATES: Is there a world where an American president can go to prison?
SCHOEN: There is a world in which that could happen. I think it'd be a horrible, horrible mistake in this country, even if he were convicted.
PARLATORE: I don't know how they would do it. Every aspect of this case is messy because our system was not built with the anticipation of a president being criminally charged.
COATES (voice-over): Which has left a number of legal theories which have never been tested. One major point of contention, the issue of presidential immunity, which Trump is currently appealing.
HONIG: Donald Trump's claim here is that he cannot be prosecuted because what he did was within the scope of his job as president.
SCHOEN: I firmly believe that President Trump is entitled to immunity. I believe that his conduct with respect to the election was within the official duties of a president. COATES: A federal appeals court disagreed. The three-judge panel ruled
unanimously that Trump is not immune from prosecution for alleged crimes he committed during his presidency to reverse the 2020 election results.
DEAN: The argument that Trump is totally immune is absurd. I mean, it is so contrary to American law.
LITMAN: And if you can't prosecute a president for crimes, you don't have a fully functioning democracy based on the rule of law.
COATES: Trump has taken his appeal directly to the Supreme Court. If the court decides to hear the case, it would first hear oral arguments at a future date and even then, it could be weeks or months before a decision is made.
The court could decline to hear the case, which would have the effect of letting the lower court ruling stand and sidestepping a politically charged case at a time when the Supreme Court has been plagued by ethical inquiries and accusations of partisanship.
LITMAN: Certainly the chief justice wants in the worst way for the American people not to perceive that the court somehow decided this election. That would be a kind of catastrophe.
COATES: If you were Donald Trump's attorney defending him in this case, what would worry you the most?
SCHOEN: D.C. jury. The political tenor against Donald Trump is so strong and overwhelming in D.C., in that pocket of the country, that it's very difficult for him to get a fair trial there, especially with all of the publicity.
PARLATORE: Cases are won and lost at the stage of jury selection because if you don't conduct that carefully to make sure you have a fair and objective jury, you're dead before you even started.
HONIG: The goal is to find 12 people who can be fair and neutral. And how many people have no particular view on Donald Trump?
LITMAN: Let's posit for example that a hung jury, that's not a loss, but guess what? In the system with all the buildup we've had, I think it will play as a loss and will occasion real reflection in the DOJ whether to go at it again.
COATES: And all it takes is one juror.
DEAN: And I think that's the hope that Trump hangs on to that he at least reaches somebody who ends up sitting in that jury.
COATES: Do you think that he will be found guilty in this trial?
KINZINGER: I shudder if he doesn't get found guilty because I think that sends a message that if you're in power, you can try anything to stay in power.
(END VIDEOTAPE)
COOPER: This federal case is one of four criminal trials the former president has been seeking to delay, but just days ago, a Manhattan judge threw out a motion to dismiss the charges in the case involving hush money payments during the 2016 campaign. That trial is now set to begin March 25th.
Thanks for watching THE WHOLE STORY.
