The Lead with Jake Tapper Aired April 25, 2024 - 16:00 ET THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. [16:00:16] … (COMMERCIAL BREAK) ANNOUNCER: This is CNN breaking news. TAPPER: And welcome back to THE LEAD. All in this hour in the law and justice lead and this big day for Donald J. Trump. Two of his criminal cases were in courtrooms at the same time. … The Lead with Jake Tapper Aired April 25, 2024 - 17:00 ET THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. [17:00:00] JAKE TAPPER, CNN HOST: There is, of course, the Manhattan hush money cover up trial up in Manhattan. Testimony just wrapped up for the day. Former tabloid publisher David Pecker is expected to be back on the stand for a fourth day tomorrow. The defense is having their chance with him. Then, of course, here in Washington, D.C., Trump's immunity battle was before the U.S. Supreme Court. Questions from the justices to Trump's defense team suggest they're not sold on Trump's argument that he should have absolute immunity from any kind of criminal prosecution related to any action from when he was president. (BEGIN VIDEO CLIP) JUSTICE SAMUEL ALITO, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: You began by explaining why you believe that immunity from criminal prosecution is essential for the proper functioning of the presidency. But my question is whether the very robust form of immunity that you're advocating is really necessary in order to achieve that result. JUSTICE KETANJI BROWN JACKSON, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: If the potential for criminal liability is taken off the table, wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with abandoned while they're in office? (END VIDEO CLIP) TAPPER: In addition to these two cases, there's also a brand new criminal indictment from Arizona in an alleged attempt to overturn the 2020 election in that state. This one charges 18 different individuals, eight Trump allies from his inner circle, and 11 Republican electors in Arizona. Arizona secretary of state is going to join me this hour to discuss. But let's start this hour with that immunity case before the U.S. Supreme Court today. And we'll bring in CNN's Evan Perez and Paula Reid. And, Paula, it appears the Supreme Court might end up at some sort of middle ground here because many justices seemed skeptical of Trump's absolute immunity claim that anything he did in office that wasn't personal like, falls into official duties, although -- and his attorney kind of granted them that, it seems, but they also seemed unwilling to greenlight the January 6 trial altogether. PAULA REID, CNN SENIOR LEGAL AFFAIRS CORRESPONDENT: Yes, good news, bad news for Trump. First of all, it's clear the majority of justices are not willing to just toss the special counsel's case. But they had a lot of questions about these official acts versus private acts. And we heard, as you noted, Trump's own attorneys conceded that some of the details in the indictment are in fact not official acts. So how do you suss out which are official and which are private? Well, that's the problem, because Chief Justice Roberts, for example, clearly doesn't think that the lower courts, particularly court of appeals, did enough analysis to suss that out. Let's take a listen to what he said. (BEGIN VIDEO CLIP) CHIEF JUSTICE JOHN ROBERTS: Why shouldn't we either send it back to the court of appeals or issue an opinion making clear that's not the law? MICHAEL DREEBEN, LAWYER FOR SPECIAL COUNSEL JACK SMITH: Well, I am defending the Court of Appeals judgment. And I do think that there are layered safeguards that the court can take into account that will ameliorate concerns about unduly chilling presidential conduct. That concerns us. We are not endorsing a regime that we think would expose former presidents to criminal prosecution in bad faith for political animus without adequate evidence. (END VIDEO CLIP) REID: It doesn't appear that the justices completely by that. So what it appears they are poised to do is set up some kind of test and then kick the entire case back down to the lower courts to analyze, again, which are official acts, which are private acts, but that additional litigation would take time. We don't know how long it's going to take the Supreme Court for this decision. We don't know how long that litigation is going to take. But again, every delay benefits Trump, because if he's reelected, he can make both of his federal cases go away. TAPPER: And Evan, this case is very much about Donald J. Trump. EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Right. TAPPER: It's called in the Supreme Court, Donald J. Trump petitioner versus United States. PEREZ: Right. TAPPER: But many of the justices, if not most of them, seemed very, very focused on the precedent this case could set for future presidents. PEREZ: Right. And just because they kept going back to that point, I think it's a big win, frankly, for the former president because that's one of the things his lawyers kept arguing. They kept saying that if you allow this to go forward this way, that other presidents could face prosecution for any acts that they commit in office. And so, you'll hear -- here's Justice Gorsuch describing what he says -- what he sees at play here. Listen. (BEGIN VIDEO CLIP) JUSTICE NEIL GORSUCH, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: I'm not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives, whether it's reelection, or who knows what corrupt means in 1512, right? We don't know what that means. Maybe we'll find out sometime soon. But the dangerousness of accusing your political opponent of having bad motives, and if that's enough to overcome your core powers or any other limits. (END VIDEO CLIP) [17:05:03] PEREZ: And listen, I mean, one of the most bizarre parts of today sort of was, you know, I think one of the justices raised the prospect that a president might want to commit acts, illegal acts, in order to remain in power. What does that remind you of? TAPPER: Right. I know. PEREZ: It's almost like they're talking about the 2020 election and this case that we're talking about, right? So it's clear that they're very much focused on this idea that there be a cycle of retribution. And again, that's something that Donald Trump and his team have repeatedly raised. TAPPER: Interesting. Thanks so much to both of you. Let's bring in Josh Matz. He's a former clerk for Justice Anthony Kennedy and a former attorney for E. Jean Carroll. Also still with us, Jim Schultz, who served as White House counsel for Donald Trump. So, Josh, let me start by playing the argument that Trump attorney D. John Sauer made before the court. Take a listen. (BEGIN VIDEO CLIP) D. JOHN SAUER, ATTORNEY FOR DONALD TRUMP: The implications of the court's decision here extend far beyond the facts of this case. Could President George W. Bush have been sent to prison for obstructing an official proceeding or allegedly lying to Congress to induce war in Iraq? Could President Obama be charged with murder for killing U.S. citizens abroad by drone strike? Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies? The answer to all these questions is no. Prosecuting the president for his official acts is an innovation with no foothold in history or tradition and incompatible with our constitutional structure. (END VIDEO CLIP) TAPPER: So, Joshua, what's your reaction to that argument? JOSHUA MATZ, FORMER CLERK FOR SUPREME COURT JUSTICE ANTHONY KENNEDY: My reaction is that its unsurprising that Mr. trumps lawyer wants to talk about anything other than the facts of his own case and that he's really trying to paint the picture of some kind of dystopian future where former presidents are prosecuted with abandon for all sorts of partisan reasons. I mean, the problem with his example is that, you know, I kind of agree with him. Those presidents could not be prosecuted on any of those grounds, but not because of absolute immunity, but instead because of other protections within our legal system, which is a point that the lawyer representing the Justice Department I thought made very effectively. And, you know, I think coming off of this argument, the big question is whether the court can find a way between the fairly extreme view that everything the president does is covered with absolute immunity, with the view on the other side that nothing the president does is covered with immunity and presidents can be prosecuted for any crime after they leave office. You know, the justice has clearly disagreed about how to strike that balance. And I think it's -- it'll be tough to see whether they can arrive at a resolution that allows the case to move forward in a timely manner. But I think the position that Mr. Sauer was taking in that clap is just wildly overbroad. TAPPER: So the newest justice, Ketanji Brown Jackson, had this warning if the court ultimately finds that presidents do have absolute immunity, take a listen. (BEGIN VIDEO CLIP) JACKSON: If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority could go into office knowing that there would be no potential penalty for committing crimes, I'm trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country. (END VIDEO CLIP) TAPPER: So, Jim, if a president does have absolute immunity, what incentive might the president have for following the law other than the honor system and his good grace? And wouldn't it essentially just state that the president is above the law? JIM SCHULTZ, FORMER TRUMP WHITE HOUSE LAWYER: Yes, the answer to that. But I do agree with the points that were made earlier, and I think it's important to note that the core powers of the presidency, and there are protections there for the core powers of the presidency. And I think that's an important point that was just made. I also think it's important to note that the office of legal counsel, they referred back the office of legal Counsel that for all administrations, that there was this idea that the president, you know, could be held criminally liable for certain types of criminal conduct. So that isn't something new. You know, this isn't that narrative that this is something new, just isn't the case. And I think what could happen here, if they decide to go down the road of saying what's official, what's not, and it gets remanded back to the trial court, then what's the trial court doing -- do with it? Well, what they'll do is hold an evidentiary hearing, which if they hold an evidentiary hearing, bringing in witnesses and making that determination. You could have a mini trial within the trial at the end of the day that relates to all of this conduct, which would be a public forum, again, bringing out all of these things that happened on January 6. So if they get a remand, yes, it may kick the can down the road, but all of these issues that came out of January 6 will be relived in that evidentiary hearing. TAPPER: Interesting. There was a lightning round of questions in which Justice Amy Coney Barrett, a Trump appointee, got Trump's attorney to concede that the indictment lists acts by Donald Trump, allegations of behavior that would not be covered by presidential immunity because they were private acts. Take a listen. [17:10:20] (BEGIN VIDEO CLIP) JUSTICE AMY CONEY BARRETT, ASSOCIATE JUSTICE OF THE UNITED STATES: Petitioner turned to a private attorney was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Private? SAUER: As alleged, I think we dispute the allegation but that sounds private to me. BARRETT: Of course. Sounds private. Petitioner conspired with another private attorney who caused the filing in court of a verification signed by petitioner that contained false allegations to support a challenge. Private? SAUER: That also sounds private. BARRETT: Three private actors, two attorneys, including those mentioned above, and a political consultant, helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding and petitioner and a conspirator attorney directed that effort. SAUER: You read it quickly. I believe that's private. BARRETT: Yes. (END VIDEO CLIP) TAPPER: Joshua, what do you make of that concession? Does that mean -- I mean, it just sounds like, oh, he's granting that this stuff isn't covered by immunity, therefore, at least some of this stuff can go forward in court. But I think I'm wrong about that. But that's what it sounded like to me, this non lawyer. MATZ: I don't think you're wrong about it. I thought it was an extraordinarily important concession, and I thought it was telling that Justice Barrett was the conservative justice who is by far the most skeptical of Donald Trump's position. I think those concessions open up a really significant question. Right? Everybody seems to agree that the indictment against Trump alleges a number of acts that were private in the sense that there's no real claim that they're covered by absolute immunity. And Justice Barrett floated this compromise, if you want to call it that, at the argument where she said, well, look, what if you just drop all of the stuff that's official, or that may be official, could you just go to trial with the acts that everybody agrees are private? And, you know, that seems to be a way of potentially getting around some of the big issues here. You know, that in turn opens up this big debate about, you know, even if they did that, could all of the official acts which provide essential context and color for the entire conspiracy that's alleged, could those be brought in as evidence? And the Justice Department said yes, and Trump said no. You know, if the Supreme Court wants to think about a quick path for this case to move forward, and one that avoids some of the really thorny questions about what acts are official and what acts aren't, it could potentially remand for consideration, at least of an expedited trial focused on the private acts, although I think it would really need to give some guidance there about whether the non-private acts can still be heard by the jury as evidence, even if they can't be a separate basis from liability. TAPPER: (Inaudible), quick final thought. SCHULTZ: So I really think in the context, and they use the example of switching out the attorney general so the attorney general could issue these letters that there was some type of widespread voter fraud, right? I think that's -- that would -- a Trump team would argue that that's an official act, right? But it's like anything else. When you're talking about an appointment, right, a core power, but if you're taking a bribe for that appointment, it's the bribe that's the crime, right? So when you're talking about switching out the attorney general to do something that another attorney general wouldn't do because it's unlawful, that's when you get into the crux of the crime. So I do think that that's -- there is some exposure there, which is why I don't think they're just going to blow past kind of that idea of what's official and what's private. TAPPER: We'll see. Thanks to both of you. Really appreciate it. The underlying case before the U.S. Supreme Court was about Donald Trump's actions on the day of the Capitol attack while he was president. The now defunct House January 6 committee also investigated his actions that day. We're going to get reactions today's arguments from a former member of that committee. Stay with us. (COMMERCIAL BREAK) [17:17:42] TAPPER: While the focus of much of this day has been in courtrooms in New York and here in Washington D.C., moments ago, at Emory University in Atlanta, Georgia, scenes such as this one as protests on college campus over the war in the Middle East continued to spread. CNN's Gabe Cohen is right now at GW University, George Washington University, here in Washington. Gabe, what's going on where you are? GABE COHEN, CNN CORRESPONDENT: Yes, so, Jake, we're right in the middle of this encampment on GW's campus. Take a look, we're going to give you like a three -- full 360 view here. There's a really large crowd occupying this part of this quad here on the campus. It's private property. The university sent campus police here earlier try to clear out students. The students refused and now, we understand that the school has called in D.C.'s police department, Metropolitan Police, who are going to be arriving here we expect around seven. And they have said they are going to clear these students out. I've spoken with organizers who have said they're prepared to stay. They do not want to leave, even if police tell them they are going to, and that they are prepared to potentially get arrested and come back if they're initially cleared out. TAPPER: Interesting. These protests are spreading to campuses all over the country, it seems. COHEN: Yes, that's right. You mentioned Emory. We've seen it at Columbia, USC. It is happening all over, Northwestern, just to name a few. And speaking with organizers and students here, there's clearly that inspiration that there has been this organization here. And to be clear, these are students not just from GW, this is -- these are students from Georgetown, a big group that came over this afternoon as well as other schools around the D.C. area. And they said they were inspired by what they saw at Columbia, at some of these other schools. And so we're seeing this major scene here. We may see it continue even after they're cleared because these students are saying they're prepared to come back, Jake. TAPPER: Have you talked to any of the students? What are they exactly calling for? And has it been a peaceful demonstration? COHEN: Yes, and I apologize. We do have a really loud speaker behind us. But yes, it has been peaceful up to this point. But again, police have been sort of standing by on the side, campus police, secret service police, Metropolitan Police. We don't know what will happen around 07:00 when a much larger group of D.C. police officers are expected to come here with the purpose of getting these students out. [17:20:12] TAPPER: So, you talk to some of the students about what are they going to do if the police demand that they leave where they are right now. Tell us about that. COHEN: Well, Jake, if we have it, I did speak with an organizer a little while ago who talked about that. You know, I asked directly, what are you going to do when police arrive, if they tell students you need to leave now or be arrested? Take a listen. This is what you told me. (BEGIN VIDEO CLIP) COHEN: Are you prepared to stay here even if police demand that you leave or be arrested? UNIDENTIFIED FEMALE: I am prepared to stay here until our demands are met. (END VIDEO CLIP) COHEN: Yes. And so, we heard that repeatedly and from other students as well. People saying they're ready to put themselves on the line, essentially. And look, we have seen those dramatic scenes, Jake, videos that you have played, as other CNN shows have played, showing students, protesters on these campuses clashing with police officers. I have been at various pro-Palestinian protests across the D.C. area here in recent months. Metropolitan Police, the D.C. police department, there are no strangers to this. I've seen a lot of arrests. The question is, what is going to be that response from both sides when the officers come in, when they give those warnings to students? We may see a lot of students leave in that moment, but the question is, what will that look like? We'll be here, just saying. TAPPER: And I believe the -- I believe the footage were just showing there with the police, with the guns was at Emory University, not at GW. Gabe Cohen, thanks so much for checking in. Appreciate it. We're going to go back to the big day at the Supreme Court and the pending decision on Donald Trump pushing for presidential immunity. We're going to have reaction from a former member of the January 6 committee, plus Donald Trump's former secretary of defense. That's next. Stay with us. (COMMERCIAL BREAK) [17:26:23] TAPPER: Are presidents immune from prosecution for official acts? That is a key question that the U.S. Supreme Court wrangled with today, diving into all sorts of hypotheticals, such as, can a president order the military to assassinate a political rival? Can he or she order the military to stage a coup? While those situations might seem far- fetched, it's worth remembering what candidate Trump said in a 2016 presidential debate. (BEGIN VIDEO CLIP) BRET BAIER, FOX NEWS ANCHOR: General Michael Hayden, former CIA director, NSA director and other experts have said that when you ask the U.S. military to carry out some of your campaign promises specifically targeting terrorist families, and also the use of interrogation methods more extreme than waterboarding, the military will refuse because they've been trained to turn down and refuse illegal orders. So what would you do as commander in chief if the U.S. military refuse to carry out those orders? DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: They won't refuse. They're not going to refuse me, believe me. (END VIDEO CLIP) TAPPER: A day later, the Trump campaign walked that back in a statement, saying, quote, "It is clear that as president, I will be bound by laws just like all Americans, and I will meet those responsibilities," unquote. Joining us now, the secretary of defense for Donald Trump, Mark Esper, who serves on the board or as a strategic advisor to a handful of aerospace and defense related companies. Secretary Esper, as a former Trump senior official, what was it like listening to the Supreme Court as they debated these hypotheticals today that maybe didn't seem all that hypothetical? MARK ESPER, FORMER DEFENSE SECRETARY, TRUMP ADMINISTRATION: Well, good afternoon, Jake. I think first and foremost, it was a very serious debate and discussion for the small parts that I heard about it and what I read about it. As I like to say, though, I hate these examples being brought up about somehow the military being ordered to engineer a coup or the use of the military to kill a political opponent. It's just so outlandish. It's utterly ridiculous. And I wish we would stay away from those examples and maybe look at more serious ones. But it was clear that the court had teased out that there is a difference between immunity for official conduct and then no immunity for personal conduct. And Justice Amy Coney Barrett really put Trump's defense attorney on the spot and he conceded that in a series of charges that she raised, and he conceded the private points of it. So, I think there is obviously a distinction. The president is not above the law. No American is above the law. And I think that is an important principle that should guide us going forward. TAPPER: So in response to these questions before the U.S. Supreme Court right now, three groups of former military and national security officials filed friends of the court a brief which reads in part, quote, "any military officers who knowingly issued or carried out such an unlawful order would themselves be criminally liable," unquote. In your decades of experience in the military and as secretary of defense, do you think a situation could ever arise where a soldier or a general is commanded to do something they know is illegal but they do it anyway because they were given direct orders? ESPER: Look, nothing's ever impossible, but I find it very hard to believe that a senior officer in the United States military, or even a junior officer for that matter, would obey an illegal order. You know, I went to West Point, served many years on active duty and then on reserve duty as well and it is drilled into our heads into the ethics of the profession that you don't obey unlawful orders and that you have a duty to resist, to oppose them. And so, I believe that's ground into our military across all the services. It's part of the culture. It's also part of the fundamental principle that there's civilian control of the military, but there's a limit when it comes to unlawful orders. So I just don't believe that to be the case. I think the fact that this professional military ethic, the understanding of the duties of the military to not follow unlawful orders would prevail. And, look, I faced that in some ways. You might recall in January 2020 or so, President Trump made a statement about the United States will attack Iran's historical and cultural sites. And I went on T.V. and said, no, we will not do that. We're going to follow the laws of land warfare. And I felt it important at that time to make a statement not just to the American public, but really to the United States military, our professional armed forces, that we will continue to follow the laws of land warfare and honor the obligations and legal obligations of our profession. TAPPER: Before you go, I want to get your reaction to some news out of Gaza today. Israel says that, quote, terrorists shot mortars at a humanitarian work site in northern Gaza towards this pier that the U.S. is trying to construct. This pier would be there to get more humanitarian aid into Gaza by sea. The U.N. is characterizing this as a minor incident. If you were secretary of defense right now, how might you respond? ESPER: I'd be very concerned. And look, I was concerned from day one, speaking about this on CNN, that a major factor here is the vulnerability of our forces. You're talking about 1,000 service members or so constructing this pier. This pier is going to be relatively narrow, but it's going to stretch up to 1,800 feet out into the Mediterranean in order to connect the floating pier to the vessels that will be offloading cargo a little bit further away. And so they're quite open to both direct fire, think about rifles and machine guns, but indirect fire, which are mortars and artillery. And that's what we saw today. And, of course, you could shoot mortars and artillery from miles and miles away without attribution and cause harm to U.S. forces kill service members. If not that, you could destroy the pier quite easily and certainly disrupt operations. I think it is a very big vulnerability. I'm not sure we've worked out all the issues. And keep in mind, you also have to deal with a threat from the sea now, too. So these are big issues. I'd be very concerned. I want to talk closely with the Israelis about security, both at the pier, at the site and on the pier during operations. TAPPER: Secretary Esper, good to see you. Thanks so much. …