Anderson Cooper 360 Degrees Aired April 25, 2024 - 20:00 ET THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. … ANDERSON COOPER, CNN HOST, "ANDERSON COOPER 360": Good evening from New York. What the tabloid publisher who said the former president was a mentor to him describe today what he did to help that mentor win the White House. KAITLAN COLLINS, CNN HOST: And hi from Washington, where the Supreme Court heard arguments today for and against making any former president immune from criminal prosecution for acts in office and letting this one off the hook for trying to stay in the White House despite losing the election. COOPER: Two courtrooms, two cases, one person at the center of both, which in itself is something that a single individual should be responsible for today's legal traffic jam and tonight's split screen special primetime coverage. Here in New York, the former president's criminal trial continued with more testimony from his one time friend and former tabloid publisher, David Pecker. In it, Pecker described his role of suppressing the stories of Karen McDougal and Stormy Daniels, who both said they had affairs with Donald Trump. This photo, one of several admitted into evidence today, shows Pecker and the former president walking past the White House Rose Garden. Former president asking him at that moment, according to Pecker, "How's Karen doing?" To which Pecker says he replied, "She's doing well. She's quiet. Everything is going good." In another conversation, Pecker said Trump referred to McDougal as our girl. Pecker also suggested that Trump was angry about the interviews I did with her and Stormy Daniels when each broke their silence. We'll bring you excerpts in our coverage tonight. COLLINS: In Washington, the Supreme Court oral arguments were underway and the conservatives, who, as we know, have a majority on the court, appeared to embrace at least some form of criminal immunity for presidents. The liberal minority, by contrast, focused on the temptation that might be for a future president if they have that. (BEGIN VIDEO CLIP) KETANJI BROWN JACKSON, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: What I'm, I guess, more worried about - you seem to be worried about the president being chilled. I think that we would have a really significant opposite problem if the president wasn't chilled. 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 the seat of criminal activity in this country. (END VIDEO CLIP) COLLINS: In a moment, I'll be joined by former Trump counsel, Jim Trusty, and also former White House counsel in the Nixon administration, John Dean, who was central to the last case that the Supreme Court decided on whether presidents are above the law. Anderson, of course, first with the criminal trial and that transcript that just came out from today. COOPER: Yes, Kaitlan. With me here, criminal defense attorney, Arthur Aidala, also former federal prosecutor, Jeffrey Toobin, Jessica Roth, former House January 6th Select Committee Senior Investigative Counsel, Temidayo Aganga- Williams, CNN Senior Legal Analyst, Elie Honig, and CNN's Brynn Gingras who was in court today. A lot of billable hours right here at the table. So, Brynn, let's talk more about what the scene was like inside the courtroom today. BRYNN GINGRAS, CNN NATIONAL CORRESPONDENT: Yes, listen, I found it interesting, the contrast between the finishing up of the direct and the cross-examination, right? Direct, we see - have seen over the last couple of days, it's very methodical. They go through every single detail, pulling back the curtain on those catch-and-kill schemes with Pecker, bringing in the evidence, text messages, how they discuss signal apps with Michael Cohen. And then once we got to the cross, it was rapid fire, right? The defense was basically walking him through exactly poking holes into what the cross had just spent days and hours doing with Pecker. So I found that very interesting. Another thing I thought was so interesting, and you just mentioned your interviews that you did, also what was brought up, of course, was the Access Hollywood tape. And all these details that very likely these jurors have heard prior to the 2016 election, they were extremely enthralled. We were learning that they were ping-ponging back and forth between the questions that were being asked and Pecker's answers, so that was interesting. Meanwhile, the former president sort of sat back, particularly during Pecker's direct, he sort of sat back with his arms crossed at times, kind of closing his eyes, listening in a little bit more, but really not reacting much at all to what his former friend was saying on the stand, just feet away from him. So there was a lot of sort of quiet drama in a sense inside the courtroom, but you could certainly feel it. COOPER: I just want to get quick takes from everybody about what stood out. I mean, Elie, what stood out to you? ELIE HONIG, CNN SENIOR LEGAL ANALYST: For the reason Brynn's saying, prosecutors know you do not high-five at the end of the correct exam. That's the easy part. And the change in pace and tone that Bryn noted, I think was interesting. [20:05:03] And I do think the defense has started to score some points and chip away at Pecker's testimony. For example, they established this catch-and-kill stuff, this capturing stories, doing favors for celebrities, putting pressures on celebrities. Donald Trump did not invent that. That's been going on since the beginning of tabloid journalism. That's important context for the jury to understand. Michael Cohen, I thought - I think they scored a nice point when they established - Michael Cohen is always playing an angle for himself. They got that out of the state's witness, out of the DA's witness. And the last thing I think was there's a contradiction in an important part of Pecker's testimony where he says now that Hope Hicks was at this crucial meeting where they first started discussing this plan. But it turns out he didn't say that, the first time he was asked by investigators. Now, I'm not saying he's ruined as a witness, but this is the back and forth. I think he did a good job on direct. I'd be happy with it if I was the prosecutor. But now sit back because now he's taking on taking on some damage. COOPER: Temidayo? TEMIDAYO AGANGA-WILLIAMS, FORMER SENIOR INVESTIGATIVE COUNSEL, JANUARY 6TH COMMITTEE: Yes. Speaking from my time as a prosecutor, I agree. I think I would be happy if this were my witness. I think what stands out is something we talked about the other night, actually, is that it's quite easy to point the finger at someone else. But I think what happened today is that Pecker point the finger at himself. He basically admitted that he was part of a criminal conspiracy. And he talked importantly about election crimes and his own concern that exactly what they were doing violated that. COOPER: He actually had raised concerns and said they sought out legal counsel on that at the time. AGANGA-WILLIAMS: Exactly. And I think that's incredibly damaging because the real - one of the competing narratives here is are we talking about a personal matter in this hush money, which is what everyone does. It's what rich people do to hide stories. Are we talking about a campaign violation, are we talking about people entering into conspiracy because they know they are trying to influence an election and that is at the core of the prosecution's case. And today, David Pecker said that's exactly what was going on. COOPER: Arthur, sorry (INAUDIBLE) ... ARTHUR AIDALA, NEW YORK CRIMINAL DEFENSE ATTORNEY: What I heard about and, Elie, I believe is absolutely correct. The cross examination, they made some points right out of the box. And the way you just described it, Brynn, going like boom, boom, boom, boom, boom, that's what you want. And you only get one chance to make a first impression on this jury. This is the first big cross examination. You want the jurors to know right off the bat, you hear - you're going to hear all these nice, prepared, totally rehearsed, direct examinations, but watch what happens. Watch what happens. Watch how we fillet that once we dig into the details. And apparently I had a friend who was in the courtroom. He said after the first hour and a half of cross examination, I wanted to take a shower after hearing how filthy that tabloid industry is. And he really - I don't know the details, but apparently it was a lot about Arnold Schwarzenegger ... COOPER: Right. AIDALA: ... and when he was going to run and all the things that they buried with it. COOPER: Right, right. Pecker was testifying that Arnold Schwarzenegger had actually been in contact with him about essentially doing the same kind of catch-and-kill sort of stuff. AIDALA: Yes. And I think I made the analogy today, they're like, well, what's the big deal about bringing that out? If a jury is there and they're listening to a crime and there's someone who's like talking about how horrible double parking is, but then you have like 18 other people, well, I double park, and you double park, and you double park, this kind of slides into that jury nullification basket. Like, so this is standard operating procedure. This isn't like Donald Trump is the only one who's ever done this. They're like, oh, this is what all politicians do. They pay to bury stories or have someone in the tabloid help them. COOPER: Jessica, for you? JESSICA ROTH, FORMER FEDERAL PROSECUTOR, SOUTHERN DISTRICT OF NEW YORK: I was just going to pick up on that point, though, which is to say one of the things that's significant about establishing that that AMI did this for lots of other people is it tends to negate the idea that this was done for an election purpose, right? They're catching and killing stories for lots of other celebrities (INAUDIBLE) politicians ... COOPER: Although Schwarzenegger was running for governor (INAUDIBLE) ... ROTH: Right. But Mark Wahlberg wasn't, right. I mean, there are other people for whom Pecker was saying we would do this. And so I think at the end of the day, Pecker was still a very effective witness for the prosecution. I think there's lots of answers to this. He talked about how - when we got close to the election for President Trump, that the concern that Trump expressed was about the effect on his campaign. But nevertheless, I think establishing that this was sort of standard operating procedure normalizes it, makes it seem arguably like it's less related to the campaign itself, which is important. But overall, I thought he was an excellent witness. And also, significantly, he showed no bias toward Trump. I mean, not only was he not deflecting responsibility for his own criminal conduct, but he was saying that he still considered the former president a friend. COOPER: Yes. He didn't come off sounding like he had an axe to grind. ROTH: No. He wasn't he wasn't holding anything back and he had no axe to grind. COOPER: Jeff? JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: If I were Donald Trump, I would be so happy about what happened in Washington today. I wouldn't even care what happened in the courtroom today because I think the Supreme Court really signaled that we are not going to see any other trials this year. We'll get to that later tonight, I know. But the value to the prosecution of Pecker is that he laid out the frame of this story. Now the jury understands that there were these three witnesses, three paid, that is all going to be filled out. Maybe they'll believe it, maybe they won't. Your idea that this is so terrible and this is just business as usual, who was their partner in all of this? Donald Trump. [20:10:04] You don't think the jury is going to be somewhat offended that this guy who's running for president of the United States is involved with all these sleazeballs? AIDALA: That he buried a sex story, which you heard from their witness, so did this celebrity, so did that celebrity, so did this celebrity, so did that celebrity, so did this celebrity, that it happens all the time. It's not this unique. Oh, my god, they came on - this isn't Watergate. That's my point. Watergate was a very unique time. It's the first time that something like that has ever happened. What came out across examination is this happens all the time. ROTH: But bringing it back to what Temidayo said a moment ago, but this time they consulted their lawyers and then they started to back off, because they realized that they were veering into territory with respect to the campaign that made them nervous about it being (INAUDIBLE) ... TOOBIN: With the money. ROTH: With the money. TOOBIN: With the money. ROTH: Yes. TOOBIN: And that's what matters here is the money. GINGRAS: But if I could jump off of what you were saying on the stand, Pecker is very composed during direct. He's very composed. If he doesn't know an answer, he wouldn't say - he would say, I don't know. He would - he wouldn't hesitate. He was very believable and credible when he was testifying on direct. They didn't get to the crux of what this case is, which is Stormy Daniels, because, of course, Pecker didn't pay Stormy Daniels, right? He said, I'm not a bank after paying the other two stories. So the question is now, sure, he's credible, but most of the story is not going to come from him. So are they going to find Michael Cohen credible who has an axe to grind against Donald Trump? Pecker, like, to your point, said he was my mentor. Like he was very nice. He was very believable. And this real story is coming from someone else further in the trial. HONIG: This is a classic dilemma that you see at all trials when prosecutors are almost always going to build their case to some extent on testimony from people who are involved in the crime, cooperating witnesses, people who've been given immunity like David Pecker. And defense lawyers say, how can you convict based on the word of this sleazebag? How can you base - convict based on the word of this convicted liar coming up later, et cetera. And prosecutors, we have our standard thing, we've all done, where you say, guess who chose this guy, right? The defendant chose him when he chose to go into business with him, when he chose Michael Cohen as his lawyer. So that's who we're going to show you the - that's how we're going to prove this case to you. And the task for prosecutors now, as Jessica was pointing out, is explaining why this transaction was different from Mark Wahlberg or Schwarzenegger and different in a way that takes it over the line of criminality. COOPER: It is interesting that all of the people who are going to be in that courtroom were people in the orbit of Donald Trump. I mean, it's not as if they are random strangers. They are the people who Trump chose to have in his life. AGANGA-WILLIAMS: I think when we talk about this dirt that's spread around, I think if I'm Donald Trump's lawyers, I'm worried about that dirt being on Donald Trump, right? This is the former president. And I think that's what's really going to be important here. Right now, I think the standard of this is in Watergate. That's not the standard here, right? And I think a jury, when they get their jury charge from the judge, that's not going to be the charge he's going to give them. They don't have to find that this is (INAUDIBLE) ... AIDALA: Well, I don't know the charge he's going to give (INAUDIBLE) ... AGANGA-WILLIAMS: Well, I guess what we do know though, it's not going to be that it has to be the crime of the century. That's not what a jury has to answer. COOPER: But I do think it's fascinating when you see that black and white photo of Donald Trump walking past the Rose Garden with David Pecker. And we've seen heads of state walking down that. We've seen people of consequence walking down that. And to know who David Pecker is now and to know what Donald Trump is saying right there, which is essentially how's Karen doing, is she going to shut up. TOOBIN: And later in the trial, we are going to see checks that Donald Trump signed to, according to the prosecution, to pay Michael Cohen back for the money he gave to Stormy Daniels. COOPER: You see that photo in black and white and you feel it's historic and they're, wow, these are important people and talking about important things. And they're talking about a hush money deal and keeping a woman silent. TOOBIN: And these checks were signed in the Oval Office while he was president of the United States, that might mean something. COOPER: Just ahead, more of what we're learning from the courtroom transcripts, which is just fascinating. And next, Kaitlan's back with us. Jeff mentioned a moment ago today, Supreme Court oral arguments and presidential immunity, what the justices asked both sides, in a case that Justice Gorsuch today said, "We are writing a rule for the ages." (COMMERCIAL BREAK) [20:16:55] COLLINS: After nearly three hours of oral arguments before the Supreme Court today, the justices did not seem willing to embrace former President Trump's anything goes interpretation of presidential immunity. But instead, much of the hearing instead focused on where to draw the distinction between the official acts of a president and their private conduct. Here's conservative Justice Amy Coney Barrett questioning the president's attorney, John Sauer. (BEGIN VIDEO CLIP) AMY CONEY BARRETT, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES: You concede that private acts don't get immunity? JOHN SAUER, DONALD TRUMP'S ATTORNEY: We do. BARRETT: Okay. And I want to know if you agree or disagree about the characterization of these acts as private: Petitioner turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Private? SAUER: As alleged, I mean, we dispute the allegation. BARRETT: Of course. SAUER: But that sounds private to me. BARRETT: 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 co-conspirator attorney directed that effort. SAUER: You read it quickly. BARRETT: Yes. SAUER: I believe that's private. (END VIDEO CLIP) COLLINS: Some of today's arguments also focused on former President Richard Nixon and his legal entanglements and how that precedent reflects on today and what that means. I'm joined tonight by the former counsel to former President Trump, Jim Trusty, former federal prosecutor, Elliot Williams, Georgetown law professor, Victoria Nourse and former federal prosecutor, Shan Wu. And also someone very familiar with the legal legacy left behind by Richard Nixon, the former president's one-time White House counsel, John Dean. And John, let me start with you, given how Watergate - I think we all knew it was going to come up at some point, but this is how Trump's attorney responded when Justice Ketanji Brown Jackson raised this question about President Nixon. (BEGIN VIDEO CLIP) JACKSON: What was up with the pardon for President Nixon? SAUER: I think that ... JACKSON: If everybody thought that presidents couldn't be prosecuted, then what was that about? SAUER: Well, he was under investigation for both private and public conduct at the time. (END VIDEO CLIP) COLLINS: John, given that, I wonder what you made of how just over 10 minutes after that, Trump's attorney also acknowledged that that allegation by Jack Smith and that indictment includes both private and official acts. JOHN DEAN, CNN CONTRIBUTOR: My reaction was that there's a thin read there for them to draw upon. Ford clearly thought - President Ford clearly thought that Nixon could be prosecuted. Indeed, he thought he was getting a confession from Nixon when he issued the pardon. He actually carried around it in his pocketbook or in his wallet a cite of a case that said, in essence, by the Supreme Court, that acceptance of a pardon was admission of guilt. So the whole assumption, back then, was that presidents had no immunity. They could not commit crimes without having exposure. And unless there was just a passing by the Department of Justice on taking action, indeed, they had jeopardy. [20:20:05] So the situation has dramatically changed and Nixon's one-time prediction that if the president does it, that means it's legal seemed to come to bear today on the conservative justices on the court. COLLINS: Yes, I was remembering how we reported at Trump's term in office. He actually forbade people from bringing up Nixon comparisons to him, often with a lot of expletives, because he was tired of hearing those comparisons. But on the argument that Trump's attorney did concede today, saying that some of those accusations are private acts that Trump did, what did you make of that shift? DEAN: Well, I thought it was a surprising admission, since they've sort of stonewalled it on everything. They just couldn't get around arguing that some of those acts were not official acts, even though Trump has pretended that everything he did while he was still president was an official act. So we'll see how far that goes. They are - the issues he conceded to, he must think he has a factual argument that he can make that somehow diminishes the impact of what's going on. But, Kaitlan, I was just surprised at the court's focus and seeming determination by the Republican members to write an immunity of some kind for presidents. It is just not the right case to do that and it's just going to really be a threat to democracy to have them foolishly write something just for the sake of this case. COLLINS: Yes. It was remarkable to listen to it. And, Victoria, when you hear that, you're shaking your head yes at what John Dean was just saying there. VICTORIA NOURSE, WHITWORTH PROFESSOR OF LAW, GEORGETOWN LAW: I've been a law professor for about 30 years and I study the separation of powers and the text of the Constitution. And I have to say, I was just very, very sad today. I've never heard anything like this. They said in Dobbs that women don't have a right of abortion because it's not in the text. They believe they're textualists, but they're just about to make up some text for Donald Trump. So they did not, they had an opportunity to put country above party and they did not. They refused to talk about the facts. This official immunity doctrine is only applied in civil cases, not criminal cases. So I have to say it was a dispiriting moment for me, because I teach my students at Georgetown to follow the rule of law. I tell them I'm a moderate because I have no friends on the left or the right and it was really a dispiriting day for me. COLLINS: Well, Jim Trusty, I mean, you were on Trump's defense team. Obviously, you're not any longer. But what did you make of how the arguments went today? JIM TRUSTY, FORMER COUNSEL FOR PRESIDENT TRUMP: I'm not crying in my beer that this was a breakdown of law and order. COLLINS: And to be clear, that's not actually a beer. TRUSTY: Well, not yet, but it's only about 8:15. No, look, I mean, honestly, I give a lot more credit to the conservative side of the bench on this. And I'll say a couple of things. One is I actually - I like to kind of sit in judgment on the advocacy of the parties, whatever my stake is, whatever my interest is. And I've known Mike Dreeben for a long time. I don't know Sauer, but I actually ... COLLINS: Dreeben who was arguing on behalf of the federal government. TRUSTY: Right. I actually think that it was a really intellectually interesting debate going on today and that the party - I didn't just - I didn't agree with everything that either side said. But I thought that the way they presented themselves, their comfort in the Supreme Court is something that's pretty impressive. So if I'm talking to my students, I'd say whatever you come out on this, watch the advocacy, watch how they respond to the court, watch their knowledge of history and the history of the Supreme Court and learn something, because there's something to learn from both sides. But in terms of the court, there's a couple of things. They are looking at context and text and trying to figure out the history, whether it supports executive immunity. But they're also not blind to the current context. And the current context is craziness of ambitious prosecutors around the country throwing together very unique, very creative ways of going after the president. COLLINS: But are they not blind to that because the conservative justices didn't really seem to address the Trump factor of it at all. They seem to talk about what it meant for future presidents while not dealing with the allegations about this former and potentially future president. TRUSTY: Right. Well, the one thing that's - here's the real sad part of the story, which is they can come up with this line, this kind of mark in the continuum between personal and presidential and say this is the line where immunity begins or ends, however you want to phrase it. They'll probably do that. They're not in a position to make the factual call on these cases. So what's going to happen, I think, if they establish that there is, in fact, this kind of qualified or limited form of immunity, not the absolute kind of craziness, but if there's a limited form, it's going to go back to the trial courts to figure out, are these facts. When and how do I figure out if the facts of this case give rise or don't give rise to immunity? So we may be seeing trial courts dealing with this issue, circuits, Supreme Court saying - going to the Supreme Court saying, we - you guys gave this test a year ago. We're back, so. COLLINS: Well, notable to hear you say craziness of Trump's absolute immunity claim. Elliot, what did you - what do you make of what - Jim's analysis? ELLIOT WILLIAMS, CNN LEGAL ANALYST: No, I think you're absolutely right. [20:25:58] I think the court in sort of recognizing - well, I think Trump's team in conceding that some things might be official acts and some things are not really open the door to the Supreme Court to say, well, we can't decide what's an official act and what isn't. We're just going to send it back down to lower courts to figure out. Now, to be clear, the Supreme Court could have resolved this issue back in December and we're not even talking about that hearing at which - remember, Judge Florence Pan talked about the drone strike by SEAL Team 6 or whatever. Long before that, the Supreme Court had this issue because Jack Smith's team took it to the Supreme Court, said, we would like you to expedite this ruling. Can you please rule on this issue, and they chose not to. For this reason, they want to keep their hands out of it to some extent and push it back down to the lower courts. COLLINS: Well, Shan, can we ... TRUSTY: And because Jack's speedy trial thing was absurd on its face. COLLINS: Well, can we talk about Justice Alito and, Shan, what he raised today, which was essentially, if you do allow former presidents to be prosecuted, then they'll be so worried about being prosecuted once they leave office that they'll do unlawful things to stay in that office. It was kind of a complete reversal of that argument. SHAN WU, CNN LEGAL ANALYST: Yes, I'm not sure he understood the effect of that point. I think Justice Ketanji Brown had indicated that it would become the seat of criminality rather than the seat of power if you allow that type of absolute immunity. I mean, this whole notion that they may send back or establish a test, I think is just nonsense because they basically want to have a bunch of mini trials in every scenario to determine is it an official act or not. And you know something? We already have a system to determine that. It's called a criminal trial and they should just let it go forward, because the way that they're fashioning this is completely unworkable and it's never been needed for the past 250 years and probably won't be needed again for another 250 years. COLLINS: Were you surprised how they - by Justice Amy Coney Barrett, who seemed to kind of agree with that in the sense that these are questions a jury could answer? NOURSE: Yes, I mean, I think that's what's going to happen. But the problem is the whole framing around official immunity. That's in a civil case, not a criminal case. So they took Trump's framing of this question and then they're running with it and that is going to cause enormous delay and confusion. They mentioned the state cases in Georgia, in New York. So if I'm a lawyer in those cases, I'm going to bring that up. So the problem is they had a statesman like option, which is to say the president's not immune and they didn't choose it. COLLINS: We'll see what this ruling looks like when we actually get it. Coming up, we're going to go back to Anderson in New York and what we're learning from the transcript, the full quotes of what happened today in that Manhattan courtroom. John Berman is going to be with us with some of the biggest moments from today's testimony. (COMMERCIAL BREAK) [20:31:38] COOPER: Moments ago, we received the full transcript from today's hush money trial testimony during our live coverage of the trial. We have a number of reporters providing real time text about what's happening and being said, but the transcripts really give a fuller picture of what occurred. John Berman joins us now. I know you've been going through them. There's a lot of pages. What stands out? JOHN BERMAN, CNN ANCHOR: I've been speed reading, literally. We just got the last bit right here, and there are tears there. One of the things that jumps out to me is how many times David Pecker testified to having conversations specifically with Donald Trump. It was mostly about Karen McDougal, but there is one point in the transcript where he talked to Trump about Stormy Daniels, and I missed that initially during the day when it happened. And this is part of that cross exam. This is actually during direct. Josh Steinglass, the prosecutor, said, "Did Mr. Trump contact you in connection with Ms. Daniels appearance on Anderson Cooper?" Pecker says, "Yes, he did." Steinglass, "Can you describe for the jury how that conversation went?" David Pecker says, "When Mr. Trump called me, he said to me the same. He asked me if I saw the Stormy Daniels interview with Anderson Cooper. I said, "Yes, I did." He said that, "We have an agreement with Stormy Daniels that she cannot mention my name or do anything like this. And each time she breaches the agreement, it's $1 million penalty. And based on the interview with Anderson Cooper, Stormy Daniels owes Donald Trump -- Donald Trump talking about himself -- $24 million." Josh Steinglass says, "That's what Donald Trump told you?" Pecker, "That's what he told me." COOPER: I mean, Jeff, you recently interviewed Stormy Daniels. Does she -- there is some money she -- JEFFREY TOOBIN, FORMER FEDERAL PROSECUTOR: Well -- COOPER: -- owes. TOOBIN: -- it's a desperate problem for Stormy Daniels. When she was represented by Michael Avenatti, of blessed memory, he sued Donald Trump on her behalf for defamation. That case was not only thrown out of court, but the judge in California awarded attorney's fees to Donald Trump because the judge said the case was frivolous. Those were assessed against the client, Stormy Daniels, not against the lawyer. That debt, which has been multiplying over the years, is currently about $670,000. So Stormy Daniels owes Donald Trump at this moment about $670,000 and has essentially no chance of discharging that debt because it's been appealed and it's been upheld. This is something that I suspect the Trump's lawyers are going to use when she testifies to talk about her bias and anger. Now, she has lots of things in her favor. She is actually a very good witness. She testified against Michael Avenatti in his criminal trial in Manhattan and the jury clearly believed her. I mean she is a believable person. But she does have an axe to grind against Donald Trump and that is going to be brought out in front of the jury. COOPER: I mean it was interesting because Trump also -- Pecker testified that he got an angry call from Trump also about another interview I did which was with Karen McDougal in 2018. Pecker said, "So Mr. Trump said when he called me, he said, "Did you see Anderson Cooper interview with Karen McDougal?" I said, "Yes." He said, "I thought you had -- and we had an agreement with Karen McDougal that she can't give any interviews or be on any television shows." So I said, "Yes." I said, "We had an agreement by amended it to allow her to speak to the press." Mr. Trump got very aggravated when he heard that I amended it. He couldn't understand why. I said, "Karen had a two-year agreement. She was flooded with requests from the press for interviews. And I amended her agreement at that time." [20:35:08] Trump said, "Well, then you paid her." I said, "Yes, I paid her and amended the agreement." "He was very upset. He couldn't understand why I did it," end quote. I just want to play what Karen McDougal actually said during the interview. Or not, we don't have it. Why would he have amended -- I don't understand why would David Pecker have amended that agreement with Karen McDougal? TOOBIN: It's not clear to me either. I mean, he had an independent business relationship with Karen McDougal. She was a columnist for one of his outdoor, you know, fitness magazines. He -- I don't know why he wanted to do that. And, obviously, Trump didn't know why either and he was pissed. ARTHUR AIDALA, NEW YORK CRIMINAL DEFENSE ATTORNEY: Yes, Anderson, you seem to be pissing off Donald Trump. What's up with that, man, you know? COOPER: Well, yes. AIDALA: He's -- COOPER: It's not the first time. ELIE HONIG, CNN SENIOR LEGAL ANALYST: What I think is also significant about these passages is that it shows direct contact between David Pecker and Donald Trump. And a lot of David Pecker's testimony was going through Michael Cohen. The vast majority of his communications about Karen McDougal and Stormy Daniels were through Michael Cohen. But as a prosecutor, you want to be able to point to these exact excerpts and say, Donald Trump himself knew what was going on and was very invested. BERMAN: Yes. Not just direct conversations, but conversations and statements saying like, we -- HONIG: Yes. BERMAN: -- have an agreement with Stormy Daniels, according to Pecker, which gets to Donald Trump's state of mind that he knew there were these agreements in place. TOOBIN: And they were for his benefit. And that's the thing, is that one of the issues here is, did Donald Trump think, you know, like, why did these agreements take place? The agreements took place for Donald Trump's benefit to get elected president of the United States. Those quotes which you just read, show that he knew that's why these agreements were in place, and he was angry when he thought they were being violated. COOPER: Yes. The fact that, I mean, Pecker saying that there was a catch and kill deal with Arnold Schwarzenegger shortly before he ran for governor. He said he testified that he suppressed a story about Rahm Emanuel as a favor to Rahm Emanuel's brother, Ari, who's a big time agent, I guess. CNN has reached out for comment from them and others mentioned today, I should point that out. Does any of that matter? I mean, what is the significance? AIDALA: Yes. Well, the significance is, look, there's going to be an underlying current here by the defense of jury nullification. Like, so what, so what. Let's just say everything the prosecutor says is true and they satisfy the elements of the crime, which is crazy crime, but so what. Big deal. Everyone else is doing it. Everyone's -- and what this case is all about, it's not a crime and figuring out who did it. It's we got this guy here and now we got to figure out what he did to try to convict him. TOOBIN: You think in a case of this magnitude, a case with all this attention -- AIDALA: All you need is one. TOOBIN: -- the jury -- AIDALA: All you need is one. All you need is one. TOOBIN: But the jury is going to say, well, we think -- AIDALA: All you need is one. TOOBIN: -- we think he's guilty, but we're going to just find him not guilty anyway. AIDALA: Do you -- are you kidding me? TOOBIN: I mean, come on. AIDALA: You don't think there's someone who could be so annoyed that a guy who's running for president of the United States is sitting there for six or eight weeks when he should be out doing something, fundraising, campaigning, or golfing with people who matter. And they're holding -- you don't think there's one or two people out there like, this was totally a crime. That's a BS little crime and they just did this to keep him off, that's election interference. COOPER: Well, here's the things out. AIDALA: You're maybe one person who does that. I think you're mistaken. TEMIDAYO AGANGA-WILLIAMS, FORMER SENIOR INVESTIGATIVE COUNSEL, JAN. 6TH COMMITTEE: Yes. I think in any trial, there could always be one person. But I think what's more likely is that people are going to be offended. That in an election that's supposed to be about the will of the people, they're not getting all the information about the candidates. And I think that's what the prosecution is going to keen on. We can talk about this like it's not the big crime and what's not, but I think what they've effectively done is showed that Donald Trump thought this was important. The chance of him running the free world. That when he was attacking his other candidates like Ted Cruz, he thought this was so important that he should drag them down. So I think, yes, there's always a concern about jury nullification. But his defense lawyers cannot argue that. You are not permitted to argue to the jury that they should not follow the law. And what the judge told them at the start is that you are obligated to follow the law. AIDALA: No. But what you say, this is what I think -- AGANGA-WILLIAMS: That's what he told them. AIDALA: OK, and you know what I tell them? I say, he's a justice of the Supreme Court. This says justice, but you know who determines what justice is in this courtroom? The 12 of you. You determine what justice dictates. You determine what's the outcome of this case. COOPER: These are the law that also raised affections -- AIDALA: No, no, that the defense jury doesn't say that. COOPER: Yes. It does also raise questions about what other secrets does Donald Trump have, business related, whatever, that might compromise him in office. I mean, if he's walking down in the White House chatting with David Pecker, and we think he's doing the people's business but he's actually doing hush money business. I mean aren't there all sorts of questions, like, how else is he potentially compromised? [20:40:02] AIDALA: But can't you say that about everyone? Bill -- about Bill Clinton? You couldn't say that about Bill Clinton, who I think was a great president. COOPER: Certainly, he did get a lot of other things on his mind. I don't know that, you know, every politician is like that. I don't know. AIDALA: Well, not every politician, but I think when you're at that level, and to get to that level, yes, there's always something in your background. I don't think Stormy Daniels is probably the worst thing Donald Trump ever did. I agree, there's probably a lot more stuff he needed to cover up than this. But this is the issue of the moment. COOPER: Coming up next, we'll take a short break from this story to bring you my conversation today with the parents of Hersh Goldberg- Polin, an American-Israeli who's been a hostage in Gaza going on 202 days. His parents had not gotten any word whether he was alive or not. They knew his left hand had been blown off, part of his left arm. Finally, they got a proof of life video that was just released yesterday. I'm going to talk to them about it, next. (COMMERCIAL BREAK) COOPER: For more than six months, Jonathan Polin and Rachel Goldberg have lived as best they can in a nightmare, hoping that their son, Hersh, who was abducted by gunmen last October 7th during the Hamas terror attack, was still alive. Their last images of him were from this video, retrieved from the body cam or phone of a gunman. Hersh, his left hand and part of his arm had been blown off, likely by a grenade, being forced into the back of a truck. I was initially shown this video by an Israeli soldier, and I recorded it. Jon and Rachel had not seen the video when I happened to interview them a couple of days later. Realizing it was their son I'd seen, I called them after the interview and I then sent them this video. It was the first time they saw their son being taken. They later decided to make it public so people could see what Hamas did to their child and so many other innocent people. We've been talking with Jon and Rachel ever since as they waited for word, any word of their son. Yesterday, they got it. A hostage video. We're only showing a frame of it. Unclear when it was made. Seems recently, but his wound appears to have healed and he is alive. [20:45:04] On it, he -- or was alive at least when this was made. On it, he said he loves his parents and he misses them. I spoke with Jon and Rachel earlier today. (BEGIN VIDEO CLIP) COOPER: Rachel and Jon, thank you so much for talking to us. How did you learn about this video? Did you know it was about to come out? JON POLIN, SON ABDUCTED BY HAMAS AT ISRAELI MUSICAL FESTIVAL: We knew that it was about to come out maybe 45 minutes before it came out. I got a call from -- there was representation from the U.S. and from Israel on the line saying, we haven't seen it, we don't know what it is, but there is a video coming out on Telegram and that's how we found out. And then we saw it when the rest of the world saw it. COOPER: I -- what was that like? RACHEL GOLDBERG, SON ABDUCTED BY HAMAS AT ISRAELI MUSICAL FESTIVAL: You know, it's actually interesting that you're asking this because I think that it was a lot like when we saw the video that you shared with us, although for us now, it was, you know, after 201 days. I mean, we were sobbing tears and emotional, overwhelmed. Feelings were just abounding. We weren't even listening to what he was saying, just hearing his voice and seeing him moving. And that he was alive was, you know, like my heart started racing and we were just, you know, sobbing. POLIN: I would say that it was hopeful. We've had hope because we have to for 202, yesterday, 201 days. But there's still something about seeing and hearing your loved one for the first time in so long mixed with concern. Which is to say that we parents know our kids best. And we know what Hersh looks like. And not only is his arm missing, which we've known about since we got your video on day 10 or 11, but he doesn't look great. Coloring is off, but you'd expect that after 200 plus days in a tunnel, but he looks a little bit puffy. His face, his neck, his shoulders could be due to a number of factors. But, there's mixed, mixed emotions here. It lights a fuel -- it lights a fire under us even more than we've already had to bring him and the other 132 hostages home as fast as we can. COOPER: You know, from the earliest days that we have all talked with each other, you know, you had told me when we sat down in Jerusalem in your house that, you know, doctors had reached out to you saying that the wounds that they saw in the video looked treatable and that that gave you hope. And then even months later, you know, you heard from veterinarians when word got out that another hostage had been treated by veterinarians. You -- veterinarians reached out to you to say, you know what, don't worry about that because actually, a vet could even work on Hersh's hand and it would be OK. I mean, when I saw this, I looked at the video and not so much to hear what he said, but more to see how he was. And you could tell the -- that wound seems to have healed. GOLDBERG: Yes. I mean, we did hear from many surgeons explaining that it's healing well, but that they were explaining what the next steps are. That he needs to have treatment the sooner, the better in terms of permanent nerve damage, in terms of getting a prosthesis that will, you know, behave the way it's supposed to. You have to have certain stimulation, rehabilitation done as soon after the amputation is possible, which obviously this has been a huge delay in treatment. So we are concerned about that, but, you know, he's alive. And there are so many families that don't have that proof that we just feel very blessed that we got that. COOPER: And to hear him say, you know, mom and dad, to hear him say, you know, your daughter's names, that must have just been incredible. GOLDBERG: Well, it's interesting because, you know, we never use Hebrew with our kids. So it was kind of like, you know, kissing someone through a veil because that's not the language that we use at home, but it's his voice. And we appreciated that message at the end that you're describing when he talks directly to us. And the message was very clear, and I don't know, you know, how -- who scripted it, or, you know, where it was coming from but I'll take it. [20:50:13] COOPER: He also -- POLIN: We certainly paid attention, Anderson, to the first two minutes and 15 seconds of the video. Maybe somebody else scripted it. Maybe it's Hersh's words. I don't think so. Doesn't even matter. I've just was immediately grabbed by those last 30 seconds and touched by it, obviously, and sending all of the same sentiments right back at Hersh, hoping that he hears and knows and sees that we love him and we miss him. And we are working to get him home as fast as we can, just as he said in the video. COOPER: Well, the other thing that really struck me about what he said is that he said -- and I'm not quoting directly, but, you know, I know you -- I know you've been doing everything you can. And -- GOLDBERG: And he said, you stay strong for me. And it was just interesting because as you know, I've probably said a million -- over a million times at this point, over these 202 days, I love you, stay strong, survive. I love you, stay strong, survive. And so, to hear him use that sort of language, which I'm assuming he has not heard us say and to say, I know you're working so hard. I don't know if he knows that, but it was very meaningful for us and powerful for us to hear that. COOPER: You and your family just celebrated Passover this week. I mean, it's a celebration of freedom of hope that no matter how dark things get, there is a way out. Did, I mean, did -- how was this Passover? GOLDBERG: Well, Passover is actually a week long, but the first two days when you're outside of Israel, you do a Seder dinner. When you're in Israel, you do just one night of Seder dinner, and we were very nervous going into this dinner because as you said, it's normally a commemoration of the Jewish people leaving captivity, leaving Egypt and going on to be a free people. And the idea that we were going to celebrate freedom when our entire being and soul and heart is being held captive just felt perverse. It was not a celebration of freedom. It was a plea and beseeching of asking for freedom for Hersh and the other 132 hostages. POLIN: Families of hostages don't need any reminder ever of the fact that we are dealing with real people, but maybe the world needs that reminder. Maybe the negotiators sitting in rooms need that reminder. And if this video plays one small piece in reminding the negotiators that you are dealing with real human beings with aspirations and families who love them and are working every day to bring them home, maybe that's a little bit of good that comes out of this for the process. GOLDBERG: Today was a milestone, you know. 17 of the 25 nations that have citizens who are still being held in Gaza in captivity, along with Hersh, signed a joint statement demanding for the release of their people. And the truth is, it shouldn't take that, but we're glad that it happened. That people are -- that country's leaders are starting to galvanize and say, this is absolute insanity. It's been over half a year. These people need to come home. And especially, we believe that that would be a real diffusion of such tremendous tension that we have throughout the region right now. COOPER: And those six words, Rachel, that you always say which is I love you, stay strong, survive, I keep thinking about that over and over in my head. I mean, what more is there to say that's it says it all. GOLDBERG: Yes. And I really, you know, we have hundreds of thousands of people who reach out to us. It is truly empowering. They're all different types of people from all different backgrounds, from all different places on Earth. And they say we are saying that to him. And I don't know how the universe works. But he might hear you. So you should really try to say it too. COOPER: I love you, stay strong, survive. Rachel Goldberg, Jon Polin, thank you. GOLDBERG: Thanks, Anderson. POLIN: Thank you. (END VIDEO CLIP) COOPER: A lot more in the next hour on the two big legal stories of the day. We're continuing to go through the batch of court transcripts we've just gotten in the Trump hush money trial. [20:55:06] And Kaitlan's back from Washington with an interview with one of the former president's attorneys who was at the Supreme Court this morning for oral arguments. (COMMERCIAL BREAK) COOPER: 9:00 p.m. at the end of a historic day here in New York where the former president is on trial for what he allegedly did to become president. … The Source with Kaitlan Collins 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. (COMMERCIAL BREAK) CNN NewsNight with Abby Phillip Aired April 25, 2024 - 22:00 ET THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. (COMMERCIAL BREAK) [22:00:00] ABBY PHILLIP, CNN ANCHOR: Two courts, two set of facts, two cases that will reverberate across America for generations, but especially this November. Welcome to a special edition of NEWSNIGHT. I'm Abby Phillip. LAURA COATES, CNN ANCHOR: And I'm Laura Coates in Washington, D.C. And today the Supreme Court, winks, winks, that it might give legal kevlar to presidents of the United States, or at least make sure he doesn't have to dodge the federal case against him Matrix-style until, of course, after the 2024 election. More on that in a few moments. But, first, we learned a lot today, Abby, from inside of a Manhattan courtroom and the lips of one David Pecker who was supposed to be the eyes and ears but the mouth is speaking, and the tabloid kingpin who did Donald Trump's bidding. Pecker will go back on the stand tomorrow, but today's testimony put an awful lot of meat on the bone about how prosecutors say Trump architected an agreement to catch and kill the Stormy Daniels story in the deciding stretch of the 2016 campaign. PHILLIP: Now, the level of detail that Pecker provided from the stand was kind of unexpected, and the jury learned some new things about a story that most of us thought we already knew. There were thank you dinners, the White House was involved, there were fights over money and Trump trying to stiff his tabloid protector. COATES: But maybe most critically actually was the prosecution. They got Pecker to make the link between the payments to women who allegedly had sexual encounters with Trump and the reason why Trump wanted to keep all of this from ever seeing sunlight. And it wasn't his family, Pecker told the jury. It was the election. PHILLIP: So, here with us to discuss today's developments, we've got a great group, former Trump White House Lawyer Jim Schultz, former Federal Prosecutor Gene Rossi, Editor of the Protect Democracy Project Amanda Carpenter, and former Trump Attorney Tim Parlatore, also with us, a former assistant U.S. attorney, Kim Wehle. She is also the author of the book, Pardon Power, How the Pardon System Works and Why, that may be important in these cases as well. But let's start first with CNN's Jessica Schneider. As we're just getting these transcripts from this testimony today, Jessica, what is jumping out to you in them? JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Yes, Abby and Laura. We have all 233 pages, the verbatim of the hours of what happened inside the courtroom today. I mean, this is crucial, because while we have those reporters in the court who are giving us the real time information, this is actually it in black and white. And the first thing I want to highlight from these pages really goes to the core of this case, the issue of not just the falsification of business records, but possible campaign finance violations. So, the first part of this transcript here is from the prosecutor saying, were you aware that 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 answers, yes. Continuing, the prosecutor said, 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 continues, why did AMI make this purchase of Karen McDougal's story? Pecker says, we purchased the story so it wouldn't be published by any other organization. And why did you not want it to be published by any other organization, the prosecutor asked. Pecker says, we didn't want the story to embarrass Mr. Trump or embarrass or hurt the campaign. Again, this goes to the heart of the case here, guys. The possible campaign finance violation mixed in with the false business records. I will note that AMI, after David Pecker left, the board of AMI actually did settle with the Federal Elections Commission. They paid $180,000 fine for this exact contribution, guys. COATES: Really important, Jessica. Let's turn now to the panel because we're hearing so much information, Abby, tonight about what happened, the catch and kill scheme, but also this tie to the actual election. And, Jim, let me start with you on this because when you look at this, the prosecutors, they've got to prove it's not just to benefit or hide it from his family. The key here is for the purpose of the election. Did they have any clear moments in your mind where they slam dunk that? JIM SCHULTZ, CNN LEGAL COMMENTATOR: So, I don't think so because, first off, they're going -- cross-examination is going to bear out some other facts, right? [22:05:01] They're going to attack the credibility of David Pecker, the idea that he was trying to avoid liability himself here by coming in and testifying. They're going to use all of those things. But, really, when you go back to New York statute that they're relying on, and they telegraph that nowhere in that statute doesn't reference campaign finance, right? And they're using -- they're trying to bolster this argument that the federal election law prohibits it and that states New York state law somehow applies to that. So, you're going through two levels, and now that that is going to be what, you know, makes that a felony. That's a long way to go to that felony charge. And there's a whole lot more that needs to be shown in order to show that proof. Because, one, the former president was never charged, the campaign never paid a fine, and while AMI paid a fine and agreed to that and Michael Cohen was charged and pled guilty, they're not allowed to tie Michael Cohen's guilty plea to Trump for the judge's original order. So, they have some real work to do to get there. COATES: And they do. He's taking issue with the premise of this even being brought as a case, right? We've heard this complaint before, but they actually have to prove, as according to it, that they had falsified business records, the intent to commit another crime as part of it. The other crime we're talking about is a campaign finance violation. GENE ROSSI, FORMER FEDERAL PROSECUTOR: this may shock you but I actually agree with you. even though I'm a pro-prosecution commentator. What is going to be the -- where the rubber meets the road in this case is a jury instruction. That is vital, and it goes to your point. If the jury instruction says that they had a conspiracy to influence an election and not a conspiracy to violate the FEC rules and regulations, then your argument may not have as much strength. But if the jury instruction says FEC has to be part of the conspiracy, the scheme, then Donald Trump may have an acquittal, most likely a hung jury. PHILLIP: Why would the jury instructions even say that? Because that's not part of how the prosecution has presented this case. ROSSI: The jury instructions are not written until the end of the case. PHILLIP: But why would it specify the federal election part of this when, theoretically, it could be either the state or the federal statute? ROSSI: Because in the charging document and the statement of facts, they reference the FEC and also New York law if the jury instruction that is given to the jury and the prosecutors already played their card that they're focusing on the state law, if they're focusing on the state law and it doesn't mention the FEC, Federal Election Commission, then that inures to Trump's benefit. I'm not saying it's an argument that's going to win, but it's an argument if I were representing Trump, I would pound that to the ground. COATES: Well, take a step back for a second, Kim, on this, and I wanted to see a bigger picture, although I do love a good legal nerd discussion. This is wonderful, but thinking about this, each witness has a different piece to play. Think about an overall jigsaw puzzle, right? This one witness is not going to give you everything. They want to have the catch and kill scheme pattern established. They want to suggest that Donald Trump was aware of a catch and kill scheme for the purpose of trying to have no transparency for the election. In moving that particular needle, what did you see today? KIM WEHLE, FORMER ASSISTANT U.S. ATTORNEY: Well, I think they've established probably the narrative that he had an intent to influence the election, not necessarily to protect Melania or his reputation and also that the catch and kill scheme was created in order to cover up the payouts to these women. The question, I think, is what Todd Blanche would say Said in his opening statement, which is, will the jury be persuaded that this is a crime. Well, they say to themselves, listen, this is just the rough and tumble of politics. This is just the dirty things that politicians do. And should a former president really be prosecuted for what amounts to falsification of business records? That's really the crime. What brings it from a misdemeanor to a felony Is this intent to commit another crime or conceal. And there was a motion for a bill of particulars The judge did rule and they had FOUR different theories of these underlying crimes. Three of them, The judge said could go forward. One was the Federal Election Commission violation. One was the New York law that loops in the Federal Election Commission violation. And then one was essentially tax fraud that essentially said that when Michael Cohen was paid back, they grossed up the payment to cover up the fact that he was going to have to pay income taxes on that. So, we haven't seen that theory, but if any of those, I think, they were able to establish, they might be able to make that link. AMANDA CARPENTER, WRITER AND EDITOR, PROTECT DEMOCRACY: I just want to go a little bit more big picture. Because in terms of what we're seeing play out in both courtrooms for what is really important for the people, regardless of what the judges and juries do, we are seeing Donald Trump's election criminality at play both in both quarters. [22:10:10] We are seeing that how he allegedly broke the law to win the election in 2016, and he broke the law to stay in power in 2020. And what we are being forced to grapple with, he's done to the Republican Party, he's done to the media, we're debating his absurd legal defenses and theories. He's in court claiming absolute immunity and we're having to sit here and listen to these arguments, oh, well, it's really about limited immunity and personal, official. No, he is saying I'm innocent. You can't come after me for any of this because I was a candidate, I was president and I want to be president again. That is what is at stake in these courtrooms. And it is absurd, it is unconstitutional and it is a sad state of affairs that we are considering it. PHILLIP: It is an important note that there is a through line between these two cases. And at the end of the day, Donald Trump doesn't think that they should be in court at all. Just stand by for one second, because I do want to go back to Jessica. There are so many key moments in the testimony from today. Jessica, you've got another one, and this one involves the White House. SCHNEIDER: Yes. You know, David Pecker didn't just talk about the scheme, you know, during the election up until the election itself, but he also talked about how this really continued on into when Trump was elected, even when he entered the White House. In particular, there was a conversation with White House officials, March 2018, actually right after Anderson Cooper interviewed Karen McDougal, and here's how the conversation went according to Pecker. The prosecution said, did there come a time after that, after March 2018, when you spoke with Mr. Trump and other members of his White House staff? David Pecker says, yes. When in relation to the call that you had with Mr. Trump? And then he said, did there come a time after that -- sorry, Pecker said it was right after the call I had with Mr. Trump, that there was this other call with the White House. Steinglass said, who else was part of that call besides yourself and Mr. Trump? Pecker answers, Hope Hicks and Sanders. That's Sarah Sanders. Okay. Can you tell the jury about that call a bit? Well, on that call, what I was planning to do and I mentioned it on the previous call to Mr. Trump, that I was going to extend Karen McDougal's contract. It was for six months. The contract was up. And I felt that from the last lunch that I had with her that we had fulfilled some of the obligations that she was looking for, specifically her beauty products and media training. So, I was going to send her a new contract. He thought that was on our original conversation. He thought that that was also a bad idea. So, when I received the second call, when I got the call back, and Hope Hicks and Huckabee, Sanders Huckabee, that's Sarah Sanders, when she was on the call, I explained to them, to the two of them, why I was going to extend the agreement. And both of them said they thought it was a good idea. Prosecutor asks what was the reason that you gave for why you wanted to extend Karen McDougal's contract? Pecker says, I wanted to extend her contract so she would not go out, not give any further interviews, or talk to the press, or say negative comments about American Media or Mr. Trump. Now, you said that when you had your individual conversation with Mr. Trump, he was skeptical of that. Pecker says, yes. Prosecutor says, how about when you explain the reason that you wanted to extend her contract to Mr. Trump, Ms. Hicks and Ms. Sanders, how did Mr. Trump react to the new plan or how did he react to that plan during that second conversation? Pecker answers, saying Trump said, it's your business, you do whatever you plan on doing. So, guys, it really talks about how Pecker was still moving on this and working with Karen McDougal even after Trump took office. And having these phone calls with very high level people within the White House during the presidency, still dealing with the fallout of these catch and kill deals that they had made leading up to the election. PHILLIP: Yes. The other thing that strikes out to me, Laura, about that is that after the election, Trump was like, whatever you want to do is just fine. Tim, what did you hear in all of that? TIM PARLATORE, FORMER TRUMP ATTORNEY: I mean, a lot of this stuff, and I know that everybody wants to say, oh, this is all criminality, the campaigns and everything, but the reality is everything that David Pecker has talked about is -- you know, it may be unseemly, it may be immoral, but it's not a crime, okay? None of this stuff is a crime. PHILLIP: And just to be clear, I mean, this Karen McDougal story in particular is actually not the allegation that it's supposed to be a crime. It's the part that's not -- PARLATORE: It's not charged. It's not ever been charged. It's not even been an FEC violation against the campaign. And so all of this stuff, you know, we're talking about, you know, so-called prior bad acts, but none of these are prior criminal acts. You know, the only thing that he's charged with is the annotations made in the books of the Trump Organization related to the payments to Michael Cohen. You know, that's the only -- CARPENTER: You're talking about falsification of business record, though? PARLATORE: That's what the statute is. [22:15:00] But here's the thing. CARPENTER: It's not just the annotation. It's a lie in tax documents that are now being evaluated in court. PARLATORE: But they're not tax documents, okay? These are the books of the corporation where they're annotating. They get an invoice from Michael Cohen. They pay the invoice. They write in the books payment to Michael Cohen legal fees. That's exactly what Michael Cohen said to them. It doesn't make a difference for tax purposes because a confidential settlement. Remember this is pre-2018, so a confidential settlement is just as deductible as legal fees are. So, it doesn't have any tax benefit, whatsoever. These are not public records. These are not, you know, books that are going to be put into any FEC filings. So, it's not covering up any election law issues. CARPENTER: But he is in court for falsifying business records. PHILLIP: Just to jump in here for one second -- PARLATORE: He's in court because he's accused of something. PHILLIP: Just to jump in here. The point of the Karen McDougal story is not to say any of it is criminal, but it's actually to establish the purpose of the whole scheme, in general, that Trump cared more before the election than he did after the election, that David Pecker knew that doing this at that particular time would be considered a campaign finance violation. So, there's some elements of this -- the whole M.O. There're some elements of this that they are trying to establish for the purpose of the jury. ROSSI: I said this on your show. In August of 2015, allegedly, he is presumed innocent, there was a scheme. It had four legs to that stool. One leg was catch and kill. One leg was sliming Ted Cruz, Hillary, Dr. Carson. The other leg was pro-Trump articles and that fourth leg is taxes. And I want to say this, I want to compliment Professor Kim here, the jury -- and I've done a bunch of tax cases and I've had acquittals. And every acquittal I had was the jury, in my view, conceded that they were hanky-panky with the taxes, okay, which is happening here. Those tax deductions are bogus. And a man -- it's ridiculous to say there were legal fees. But the jury, to get to Professor Kim's point is, at the end of the day, when they go in at deliberation room, and I've had cases like this with acquittals, they get in there, we've met the elements, and then they say, to quote the immortal words of Larry David, they kind of say, okay, but is this something I want to find a former president convicted of? And if I'm the defense attorney for Donald Trump, I would subtly, if not explicitly, try to poke that there in the jury's mind that there may be on paper a crime, and I think there is. But when they get into deliberation room, is this something you want to elevate to a felony against the former president of the United States? WEHLE: Which could take his liberty, right? I mean, they could, in theory, put him in jail. And it's a humbling environment. ROSSI: I want to make it clear. I think the prosecution has varsity prosecutors. They're brilliant. And I think they have the ability to connect the dots so that the final mosaic that they present to the jury is going to be clear as a bell. But the defense attorney for President Trump, attorneys, especially the attorney who did an outstanding cross, in my view, today, they have an opening. It may not be an acquittal but they have an opening to get one or two jurors to say, Larry David, eh. COATES: Larry David says pretty, pretty good arguments. ROSSI: I love that. PHILLIP: Everybody stand by for us. We got more coming up next, the blockbuster case that could end up deciding Donald Trump's future and the future of the presidency, the institution of the presidency. Are presidents above the law? How his lawyers decided to argue this before the Supreme Court today. They basically claimed that presidents could assassinate political rivals and stage coups. This is CNN's special live coverage. (COMMERCIAL BREAK) [22:20:00] PHILLIP: Today was another historic day at the United States Supreme Court. The nine justices heard arguments from former President Trump's team who argued that he had sweeping immunity from criminal prosecution, which, if true, could convey on the presidency an extraordinary amount of power and protection. In Trump's case, such immunity would bring an end to that federal election subversion case being brought by the special counsel, Jack Smith. And joining us now is justice correspondent and columnist for The Nation Magazine, Elie Mystal. So, Elie, the incredible thing about today's hearings is that we were talking about assassinations, we were talking about military coups, we were talking about selling nuclear secrets, all hypotheticals. But the idea here is where is the line? If there is such immunity, can really the president do anything? And, actually, Trump's lawyer's answer was yes. When the justices were questioning him about it, were you surprised then, questioning the government about this, this part of it, were you surprised then that there was actually some sympathy to the idea that there could be immunity here? ELIE MYSTAL, JUSTICE CORRESPONDENT AND COLUMNIST, THE NATION MAGAZINE: No, because this is what Republican justices on the Supreme Court have always been about and what they've always done. Do you remember back in the day, I'm going to take readers -- I'm going to show my age here. Remember back in the day, Richard Nixon gets on T.V., says, when the president does it, it's not illegal? You know, everybody laughs at him, and Nixon needs a pardon, and he gets to live in disgrace for the rest of his miserable life, remember that, when that happened? Well, apparently, according to at least five Republican justices on the Supreme Court, Richard Nixon was right. [22:25:02] And, in my opinion, we should dig him up and give him an apology for daring to question him. Because, according to the Republican justices, a president has immunity from crimes, not things that could be crimes, from actual crimes, so long as the president claims that he was acting in his official capacity as president when he commits those crimes. So, if Trump wants to go out, and I don't know, shoot David Pecker because he doesn't like the testimony he's hearing, if Trump can say, oh, that's my official job as president to protect my administration, according to people like Sam Alito, that's going to be okay. And it wasn't just Sam Alito. It wasn't just Clarence Thomas. It wasn't just the extremist Republicans that we've come to know and understand do this stuff all the time. This was coming from John Roberts, who fundamentally said that there might be some official acts that are criminal that Trump should be immune from anyway. And to get into the legal nerd part of it, I know you and Laura were talking about how you like legal nerd conversations. The legal nerd part of this is that what is the court really trying to do here? Because I don't think anybody reasonable thinks, I don't think anybody on your panel is going to think that what the court ultimately wants to do is grant absolute blanket immunity to any president for any crime for the rest of the future of this country because, you know, that's a power Democratic presidents get used to. And Republican justices don't want Democratic presidents using that kind of power. So, the game here for the Supreme Court is to do what Trump has always wanted them to do, delay, delay, delay the trial until after the election where Trump has an opportunity to win re-election and cancel the trial on his own authority, right? And so what they're likely going to do -- and I believe it's going to be a 5-4 decision, what they're likely going to do is what's called a remand back to the D.C. Circuit Court of Appeals to answer the question, are there official acts that the president can commit that are crimes that he's immune from? And the DC Circuit will say no, but that will take a long time. There will have to be another hearing, another argument, another decision, and then Trump will appeal that decision and it will come all the way back to the Supreme Court. But guess what, folks, Supreme Court goes on vacation for the summer. They don't come back until the first Monday of October. If you think they're going to hear this case before then, thus giving Jack Smith any opportunity to bring Trump to trial before the election, I would like to have some of what you're drinking because that's strong stuff. PHILLIP: Well, you know, Elie, two things here. One, I think there were some other things. We'll get into this in a second, but there were some other things that happened, including the admission from Trump's lawyers that a lot of the things he's charged with are not, in fact, official acts. But I want to bring in Tim Parlatore here, because, Tim, you and I have talked about this before, and you said to me weeks ago that you believe that the justices were setting up to send this back to the lower courts. PARLATORE: Correct. PHILLIP: Was that confirmed today? PARLATORE: Yes, I think so. I mean, both sides came in with their extreme positions of absolute immunity versus no immunity. And the truth is going to end up somewhere in the middle. It's going to be some kind of a qualified immunity. I think that's what we kind of saw. And there may be a split as to how far that goes between the different justices but it's going to be that. And then once they do kind of figure out what the left and right limits are, that has to then go back to the district court for an evidentiary hearing to figure out what is and is not -- PHILLIP: But isn't it possible -- Elie, isn't it possible, also, that they could say, we need to deal with what's official, what's not? But if we can determine right now that some of these things are really not official, they could allow some or most of Jack Smith's case to go forward? MYSTAL: I mean, they could do that, and if my grandmother had wheels, she could be a wagon. But they're not going to do that. I disagree with Tim quite strongly here on this idea that the position that he gets no immunity is somehow extreme. No, no, no. It is not extreme to say that the president of the United States is just like everybody else and can be prosecuted for crime. Remember, when we are talking about official acts versus personal acts, we are talking about official crimes. Not official acts, official crimes that the president is doing in his allegedly official capacity. It is not an official act to try to overthrow the election. It is not an official act to try to overthrow the government. Yet Trump's lawyer, D. John Sauer, literally argued that it would be an official act, that Trump would be required to have immunity for if he ordered a coup or he ordered a military assassination. He said yes to both of those questions. Saying that Sauer is completely wrong and antithetical to the democratic process of self government is not an extreme position. It is the normal standard position that has operated in this country for over 250 years that is only being overturned now because it helps Trump and because it helps Republicans win elections. [22:30:04] PARLATORE: The problem here is Elie is kind of confusing what John Sauer said with what the justices said, with what -- what the ultimate ruling is going to be which obviously we don't know what the ultimate ruling is going to be. But you know some form of qualified immunity which is not any different than what we give to law enforcement officers, it's not any different than what we give to, you know, military that are doing things overseas. Yeah, having some form of qualified immunity, whatever you call it, that says, you know, certain things you're not going to get prosecuted for. Okay, if you order a drone strike -- if you order a drone strike on an American citizen overseas, that is a crime. That is murder. But it doesn't mean that we want people prosecuted for that. If they're the President, there are things that they have to do that should be, you know, exempted from any criminal investigation and prosecution. WEHLE: I'm with Elie on this but for different reasons. There is no -- in this moment, there is no criminal immunity for presidents. So, these are textualists. These are originalists. There's -- it's nowhere in article two of the constitution there is immunity for legislators in this under the speech and debate clause. The impeachment clause specifically says, if there -- someone can be impeached and be then criminally tried. That's in the plain language of the United States Constitution. Richard Nixon was pardoned by Gerald Ford with the assumption that he could be prosecuted if that was not an assumption, why would there be a pardon. In addition, Mitch McConnell, after the impeachment trial stood on the senate floor and said there's -- we are, procedurally, we're not going to convict because the justice system can hold this man accountable. The problem in this moment is if you look at Donald Trump, we've never had a president like him. We've had 240 plus years of no need for immunity for criminal immunity for presidents. The political system works. The other checks and balances work. Donald Trump mowed through every other guardrail, every other mechanism to disincentivize crimes in the White House. It's not a speed limit that gets us to slow down when we're driving. It's the ticket in the mail when we -- when we speed. And this, in my mind, is crucial to ensure there's tickets in the mail for speeding for presidents. I mean, think about it. This is being manufactured by the court in response to January 6th. January 6th -- there should be accountability for trying to steal an election violently and now the court is going to give the President more power? PHILLIP: And ironically -- COATES: Which is exactly the point that Ketanji Brown Jackson made. PHILLIP: Yeah, exactly. COATES: I mean, the idea of these two competing interests, right? On the one hand, what Donald Trump has said that there will be a chilling effect in the performance of a president if they feel as though their successor is ultimately going to be able to prosecute them. On the other hand, what does it say, Abby, if you have no criminal penalty only a political solution. And you might be increasingly emboldened. What does that do? PHILLIP: And look, the other interesting thing is that Alito raised the prospect that if you don't give immunity, then presidents might decide to do coups to stay in power. That is quite the opposite of what -- GENE ROSSI, FORMER FEDERAL PROSECUTOR: I want to comment on that. I think Alito would probably rule more towards Trump than the other side. But I think Alito was playing law professor on that one. No offense. And he was just, you know, tweaking Michael Dreeben. I got to say Michael Dreeben was the advocate for the prosecutors. He's a genius -- absolute genius. Had 50 arguments for the Supreme Court. Here's my prediction. Make it simple, okay? They are going reject absolute immunity, okay? Number two, they're all going to agree that private acts are not under any immunity. What they're going to do is that middle of the sandwich, they're going to have this very broad definition of official acts. And they're going to kick it back to Judge Chutkan to have a pre-trial hearing to go through the indictment, get rid of any surpluses that violates the test that they are going to create. And if that is the case, you're going to have a pre-trial hearing. If there's a ruling against President Trump -- Mr. Trump, it's going to go up and this trial may be held in 2030, okay? So -- AMANDA CARPENTER, PROTECT DEMOCRACY, WRITER AND EDITOR:-- invented -- he's not even asking for qualified immunity. He's making a legal argument about absolute immunity. So, if you're telling me that we're going to have to sit here and watch the Supreme Court eat up all this time and invent this new right for a president that he's not even asking for to delay it past the election, that is backdoor extra legal immunity because the American people will never get the information about what really happened on January 6th before this election in November. PHILLIP: Hang on, just one second. Let me let Jim -- [22:35:00] COATES: Hold on, everyone -- all of a sudden. Amanda, Amanda, hold on. JAMES SCHULTZ, FORMER TRUMP WHITE HOUSE LAWYER: I don't think you'll see a result out of this court that makes the conduct of -- that makes Trump immune from the conduct that's alleged, right? So, I think when you look at the questions, when they were talking about the core powers, right? So, core power of the presidency's appointments. The perfect example of that is you can't take a bribe in order to make the appointment, right? So, same thing. Let's -- let's look at the attorney general issue, right? So, there's an allegation that Trump tried to replace the attorney general when -- when he didn't like what he -- his answer, when he said I want you to send a letter out saying there was this widespread fraud, right? So, the idea that that was an official act, sure. That's an official act replacing the attorney general. But when you get down to it, the crime there is the personal gain that he's getting by replacing the attorney general, kind of like the bribe. So, I think you're going to see a test that really kind of envelops all of the conduct as being criminal in this case. But I think they're going to give you -- they're going to give the trial court a test. I do think it's going to get delayed. I think when on remand it goes back to the trial court. And what's going to happen in that in that proceeding? They're going to have a trial within the trial to determine whether there is this -- whether this conduct is official or private. And when that happens you have a trial within the trial and all of the things that were -- that came out in the -- in the congressional hearings, all the things that we saw around January 6th are going to be right on display. I got to think that Trump campaign saying, oh no, what did I buy here? PHILLIP: All right guys I'm going to give you -- I'm going to give you the last word here. Go ahead. MYSTAL: We are conflating civil qualified immunity which has always been a thing with this new criminal immunity which has never been a thing and I don't know why we're pretending like it should be. Cops don't have immunity from crimes. Congress people don't have immunity from crimes and presidents up until this moment have not had immunity from crimes. Trump is not arguing for civil immunity for his official acts. He is arguing that he has immunity to commit crimes so long as he says he committed the crime while president and that is simply not something that has ever happened before but it will happen now, thanks to the six conservative justices on the Supreme Court. COATES: Everyone, there is so much more to talk about in this issue. We do not even know where this report is going to. PHILLIP: We're holding back the tsunami here. COATES: I know. I mean this is -- let it flow. It's time -- you seem to hear all your insight on these issues but the Supreme Court's going to have to weigh in. When will they do it and will it be on our timeline or let me guess, theirs. So, how are Republican lawmakers defending Donald Trump's arguments of the Supreme Court? Well, that presidents could maybe kill their rivals or stage a coup? I'm going to ask one, live, next. (COMMERCIAL BREAK) [22:40:00] (COMMERCIAL BREAK) COATES: More now on a very consequential moment for the American presidency. The Supreme Court giving a bit of a glimpse of a future in which presidents at least have some kind of immunity from criminal prosecution. Joining me now, Republican Congressman from Ohio Jim Jordan who, of course, chairs the House Judiciary Committee. Congressman good to see you, again. How are you this evening? JIM JORDAN (R) OHIO: I'm fine, Laura, good to be with you. COATES: You know, it struck me by listening to the arguments today, this signature question. And I wonder what your answer is. Do you think there should be any limits on presidential immunity? JORDAN: Well, I think the standards are real clear. Was he president at the time? The answer to that is clearly, yes. Was he engaged in official duties, official conduct? I think the answer to that question is yes. So, I think there should be immunity for that. I think -- I think all sides agreed. I thought -- I thought John Sauer did a great -- great job in making that case at the Supreme Court. So, I think that was -- that was clear. The court has been clear in the past that they want to make sure a president, I think the words they used in the Nixon case was fearlessly and impartially be able to conduct the duties of his office. And you can't have this idea you're going to get charged with some -- some decision you make in your official capacity as president. And so I think that is clear. President Trump was President. He was engaged in his official conduct, his official duties. I think it's real clear. COATES: Well, Congressman on that point, and I think that was raised. There's this dynamic at play on the one hand, feeling you can be free to do what you'd like to do as the President without feeling you're going to get prosecuted by your successor, and the flip side of that coin though is feeling so emboldened that you don't think there is any criminal liability ahead of you. So, you might go beyond what you're otherwise able to do. Do you have that concern as a member of another and co-equal branch of government that a president could conceivably view the absence of prosecution as licensed to just -- to take all the power? JORDAN: Well, I think that's a -- that's a real concern. We have separate and equal branches of government for a reason so it's the best system ever designed. But I don't think President Trump was engaged in that. I mean what is Jack Smith charging with conspiracy to obstruct an official proceeding, really? He said peacefully and patriotically, make your voices heard. I mean I don't see how the President can be charged with that whatsoever but that's what -- and here's the interesting thing about today. Alvin Bragg is charging President Trump with conspiracy to interfere with the 2016 election and Jack Smith is charging President Trump with conspiracy to interfere with the 2020 election. Seems to me that what you got going here is Alvin Bragg and Jack Smith conspiring to interfere with the 2024 election. And based on -- and based on all the headlines I see, all the headlines today are, oh this looks like it's going to go back to the Supreme Court's going to send it back to the Lower Court. And it won't be settled before the election. Well, why the heck does that matter? Well, if we're just concerned about answering this fundamental question on what is the power, what immunity exists for the President, how that's defined, why does it matter, why does it have to happen before the election? [22:45:00] I think that proves the point. The real conspiracy here is Jack Smith, Alvin Bragg, and frankly, Fani Willis, all working to conspire to impact the 2024 election. That is the real concern. COATES: Well, I hear the points you're making, although you are conflating these are separate sovereigns. Obviously, Jack Smith, Alvin Bragg, Fani Willis are separate entities entirely. And the actual crimes charged against Trump in the Manhattan case is falsification. JORDAN: And they're all Democrats, Laura. They're all Democrats. COATES: And I hear -- I hear about the politics and what you're making. But the real issue here, I want to refocus on the conversation about the concerns, about immunity more broadly. And one of the reasons, to answer your question, people do want the answer beforehand, I think is they want the transparency to decide who they would like to vote for based on either an absence of or an actual criminal record. But let's get back to the Supreme Court, Congressman, because I know this is a very important issue to you. JORDAN: But Laura, but transparency, they've been after President Trump now for eight years. I mean, we know more about President Trump than probably any person in history, for goodness sake. This is as transparent as it comes. They want him in court and all four of these places before the election because they know it will help Democrats in this upcoming presidential race. Plain and simple. And I think, frankly, anyone with common sense can see that. COATES: But hasn't he, Congressman, hasn't he -- JORDAN: Why did they wait eight years to bring -- COATES: I don't want to cut you off, but I do have common sense. And common sense does say he has actually benefited ever since he was initially charged in the Alvin Bragg Manhattan D.A.'s office. He was able to campaign, raise contributions. Remember, he infamously was talking about his mugshot, being able to market that, as well. So he has not really been completely harmed in terms of his campaign because, as you have said in the past, he believes that it is beneficial for him to acknowledge, in his mind, that it's him against the system. But back to immunity, Congressman, and I want to refocus the conversation, please. JORDAN: Well, because it is -- COATES: When we're talking about immunity, don't you have concerns at all from the hypotheticals that were raised? And I want to give you a chance to respond to this because there were so many hypotheticals. Some of them were this, about what a commander in chief could do. One was, do you believe presidents should be able to bribe others? Should they be able to assassinate rivals, order a military coup? I wonder what you made of those hypotheticals. Do all of those, do you think, deserve presidential immunity? JORDAN: Well, President Trump didn't engage in any of those. And of course, there's not immunity for actual criminal, you know, that kind of stuff, assassinating someone. You've got to be kidding me. So, of course, but President Trump didn't engage in any of that. That's the point. You can bring up those hypotheticals, the court can bring up those, but that's not what happened here. The charge from Jack Smith is the obstruction of an official proceeding, conspiracy to obstruct an official proceeding. That's just not, it just didn't happen. I mean, if they're going to go after President Trump for that, then frankly, every Democrat who objected to, anytime a Republican's won the presidency this century, they objected on January 6, 2001. They objected on January 6, 2005, and they objected on January 6, 2017. Was that some kind of a conspiracy to obstruct an official? I mean, come on. So, that to me is just ridiculous. President Trump didn't engage in any of those activities. And he was president and he was conducting his official duties. That's where the immunity should apply. COATES: Do you think it's appropriate to have a lower court, not the Supreme Court, provide sort of an itemized, detailed list of what constitutes official action and what constitutes private action? I ask the question because obviously it raises concerns about the Supreme Court being in a position to dictate whatever the President is able to do, again, as the head of the co-equal branch of government. Is this a -- issue for the trial court, Congressman, or an issue for the Supreme Court to clearly state what's official and what's not? JORDAN: Well, I think what's going to happen, and one of your guests said this earlier, I think I do think the court will establish some kind of test. It's likely that it'll get sent back to the Lower Court, Judge Chutkan, and they will have to, that court will have to go through the facts, put it all together and apply the facts to the test that the Supreme Court comes up with. I think that's likely to happen. But again, as I pointed out, all the headlines I see from the mainstream press are, oh, we don't want that to happen because then that'll take time and we won't have the real trial of President Trump before the election like all the left wants. I mean, I think we should get the right decision. If that's what the Supreme Court thinks is the right decision, it takes time, so be it. I'm more concerned about getting this right, and I think that's exactly what the court is, well, I think that's probably what the court will do. COATES: Let me ask you on that point, I know we have to go, but don't you want, if you believe that these are completely ridiculous litigation and prosecutions, if that's what you believe, then wouldn't you want it resolved sooner than later? Why would you want this to be dragged beyond, I mean, you say it's been eight years or four years or a period of time. Why not just have the trials, have them conducted, leave it to juries and let them decide once and for all as our system dictates? JORDAN: I would love for the Supreme Court to decide this and say this is ridiculous, which I think it is. [22:50:00] And I think frankly, most Americans think that's the case. I'm not arguing for dragging this out. I'm just saying that's what appears to me likely to happen. And I'm commenting on the response from the left, which are up in arms that, oh, we can't let this drag out because we actually want the trial because they think it'll help them politically in the upcoming election. That's all I'm pointing out. I'd love for the Supreme Court to decide this. COATES: I mean, I do wonder in the end what they will decide and of course what a jury now impaneled in Manhattan and any other case that comes along, because I know you and I agree with the idea of a speedy trial for the benefit of the defendant. House Judiciary Committee Chairman Jim Jordan, thank you so much for joining me tonight. JORDAN: You bet, Laura. Thank you. COATES: Amanda, I'm wondering what you make of this. I can see you in my periphery, nodding and shaking your head. I'm curious what your thoughts are. CARPENTER: Well, there's the idea that we shouldn't be debating hypotheticals. I sort of reject that, but we'll take Jim Jordan at his word. Let's talk about what really happened and what may come up in this. Right now in America, there are a number of Republicans being charged with crimes for serving as fake electors. That was a scene allegedly orchestrated by the President and, you know, it is his official capacity. How can it be that he can be at the center of that conspiracy, all these other people can be charged, they can go to court, but somehow Donald Trump has this immunity bubble around him? That cannot be. And even the members of Congress who were involved in this knew there was something wrong with it because as revealed by the January 6th Committee, they asked the President for pardons from it. So, how can that be? And then what also came up in the court today was the idea that there is complete unfettered pardon power that cannot be touched. That should be rejected outright. The pardon clause of the Constitution is 20 words. Those 20 words are not a free pass to run roughshod over the rest of the Constitution to create licenses for political violence in the way that Donald Trump dangles them for January 6th rioters. You can't use the pardon power to override First Amendment rights. And so, the idea that like,was sort of toyed with the Supreme Court today also that this is a green light to commit all kinds of other crimes and wrap the president in another immunity bubble is just absurd and ridiculous. COATES: I got to read Kim Wehle's new book about the pardon power I say right now. Next, there's more revelations, by the way, from Trump's hush money trial, including the other celebrities who were involved in catch and kill stories like Arnold Schwarzenegger and Tiger Woods, who I bet none of them want their name in any of this right now. PHILLIP: Nobody wants to be mentioned. (COMMERCIAL BREAK) PHILLIP: More transcripts just in from Donald Trump's hush money criminal trial, including some new revelations about that catch and kill idea, those schemes. Let's go straight to CNN's Jessica Schneider. Jessica, what did we learn today about what else David Pecker and AMI were up to? [22:55:00] JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Abby, the latest revelations coming from the cross-examination done by Trump's legal team. This about how Pecker also worked to work with other celebrities and maybe bury or publish some of their stories. This one about Tiger Woods, Pecker saying. "We purchased a story about Tiger Woods from a source, but all the investigating photographs, all the investigative works was done internally. Then the prosecutor saying, "And the photographs that we're talking about are photographs of a woman meeting with Tiger Woods at a parking lot in Florida, right? That's correct. And this is one of those instances where you bought the rights to a story in order to leverage it against a celebrity, correct?" Pecker saying, "Yes, to use the access that you had to this information and the exclusive rights that you had to get Tiger Woods to do something that you wanted." Pecker again saying, "Yes. And in this instance, and this is around 2007, correct? Yes. And in that instance, what you wanted was for Mr. Woods to appear on the cover of men's health, right?" Answer, "It was Men's Fitness." And guys, this really goes to what the defense then later picked up on about how this wasn't just about Donald Trump. Pecker used these catch and kill schemes and paying off celebrities in many different realms. And the defense will likely hear them pick up tomorrow morning using that again to kind of downplay what was done on Donald Trump's behalf. PHILLIP: Yeah. Trying to make it sound mundane and normal. By the way, none of this is normal. This is something AMI was doing. This is not, I would not qualify this necessarily as journalism. Jessica, thanks for all of that. Stand by for us. Our coverage continues right after this. (COMMERCIAL BREAK) Laura Coates Live Aired April 25, 2024 - 23:00 ET THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. [23:00:00] (COMMERCIAL BREAK) LAURA COATES, CNN HOST AND SENIOR LEGAL ANALYST: Good evening. I'm Laura Coates alongside Abby Phillip and our panel here in Washington for a special edition of LAURA COATES LIVE. What a day in Trump world. The Supreme Court today hearing arguments on Trump's claims of absolute immunity from criminal prosecution for anything related to his presidency. Several justices even seeming open to some level of immunity, while others, not so much. (BEGIN VIDEO CLIP) KETANJI BROWN JACKSON, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES (voice-over): 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) ABBY PHILLIP, CNN SENIOR POLITICAL CORRESPONDENT: This case could go back to the lower courts, which would severely delay the start of Trump's federal election subversion trial. That could ultimately mean that Trump's hush money trial in Manhattan may very well be the only criminal trial to actually take place before the election. And on day seven of that trial, the former "National Enquirer" publisher, David Pecker, has once again taken the stand to testify against Trump, who surprisingly gave him rave reviews. (BEGIN VIDEO CLIP) DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES, PRESIDENTIAL CANDIDATE: Today was breathtaking. This room, you saw what went on. It was breathtaking. And amazing testimony. (END VIDEO CLIP) COATES: Breathtaking and amazing testimony, huh? Well, that's what you don't hear every day, a defendant calling testimony in his case against him breathtaking. Well, today, David Pecker testified about a deal made with Playboy playmate, Karen McDougal, to kill her story of an affair that she alleges that she had with Donald Trump. He also outlined the involvement of Donald Trump's one-time fixer, Michael Cohen, along with Trump. Question, when Michael Cohen said, the boss will take care of it, what did you understand that to mean? That he -- that I would be either reimbursed by the Trump Organization or by Donald Trump. Pecker also said he assumed Trump was worried about stories impacting his campaign, not his family. Question, now, did he ever say anything that made you think that his concern about these stories getting out was for his family, rather than for his campaign? Pecker's answer, I thought it was for the campaign. We have a lot to talk about with CNN legal commentator and former Trump White House lawyer Jim Schultz, former federal prosecutor Gene Rossi, former January 6th Committee investigative counsel Marcus Childress, former assistant U.S. attorney and the author of the forthcoming book, "Pardon Power," Kim Wehle, and former Republican Congressman Joe Walsh. So glad to have all of you, guys, here. All right, I want to ask you first about what took place in terms of the cross-examination here, Marcus, because there was a lot. I mean, this is not the Michael Cohen witness where everyone knows you're going to go after his credibility, the fact that he has different guilty pleas for false statements and beyond. This is David Pecker, a longtime friend who has immunity, who has a non-prosecution agreement. How did they do? MARCUS CHILDRESS, FORMER JANUARY 6 COMMITTEE INVESTIGATIVE COUNSEL: Look, you're trying to chip away at this point on cross-examination. You're not going for a knockout blow. I mean, we've heard you talk about the jigsaw puzzle for the prosecution. On defense, you're just trying to chip away whether it will be putting more weight on Michael Cohen's testimony. So, saying, hey, if the president is going through Cohen to talk to you each time, if that's the case, now we're really relying on Michael Cohen's word of what Donald Trump was telling him. So, I think, here, you're not going to get a win, you're not going to get a knockout. You're just trying to chip away at the edges of what the prosecution is trying to prove that you can argue it in your closing argument. COATES: Kim, why do you think Trump thinks it was amazing, breathtaking testimony? I mean, he detailed "catch and kill" schemes, that he believed that he actually had an affair with Karen McDougal, that they weren't paying money back for what they caught and killed in the past. I wasn't in the room where it happened, but I was listening. KIM WEHLE, AUTHOR, FORMER ASSISTANT U.S. ATTORNEY: VISITING PROFESSOR OF LAW AT AMERICAN UNIVERSITY: I think it goes to really the strongest defense here, which is so what? Which is, listen. This is what people do, like Donald Trump. This is what celebrities do when they don't want bad information coming out. They work these deals out. The government has to prove that there was an intent for Donald Trump to falsify records and that there was an intent to cover up these election crimes. I think it's hard for them on the facts, the defense, to actually dispute that meaningfully, that it seems like he has established Donald Trump was part of this and everybody knew this was about keeping information quiet. [23:05:06] So, the strongest defense really is where his lawyer came out in the opening statements and said, this really shouldn't be a crime, this is just hush money payments, I'm sure it was around election, elections are kind of brutal and you do what you can to get elected. COATES: That sounds a lot like what the attorney for Donald Trump said in opening statements, right? It's not a crime to interfere with an election. You call that democracy. PHILLIP: Well, you know, I mean -- (LAUGHTER) -- you can say it that way, but I'm not sure that's 100% true. I mean, one of the interesting things that I find about David Pecker, right, and what he testifies to, and the reason I find the Karen McDougal story so interesting, is what changed between Karen McDougal and Stormy Daniels. He talks about not wanting to get involved in Stormy Daniels. He says, I am not purchasing this story, I am not going to be involved with a porn star, as if suddenly this is a line he's going to draw. I am not a bank. And he says about Michael Cohen, Michael Cohen was really upset. He said that the boss would be furious at me and that I should go forward with purchasing it. He was also, in other parts of his testimony, he was worried about the legal implications. He consulted lawyers. He consulted campaign finance experts. He seemed to be spooked by what he had just done for Karen McDougal and didn't want to do it again. GENE ROSSI, FORMER FEDERAL PROSECUTOR: I represented Keith Davidson. He's going to be a key witness in this trial. He's the one who negotiated the NDAs with McDougal and with Stormy. And the timeline, as Professor Kim knows, is crucial in any prosecution. In August of 2016, Keith Davidson would say, this is public, that he had a meeting with Dylan Howard, who unfortunately is not a key witness. PHILLIP: But has been brought up quite a lot today. ROSSI: Abby, they discussed with Karen McDougal, having her on the cover of magazines, writing articles about intellectual topics. The luncheon was a joke. It was to kill the case. What happened was, on October 7th, Access Hollywood. After that tape came out, Michael Cohen and Donald Trump were shitting their -- you know what. I hope I don't get blocked. (LAUGHTER) COATES: You added the flare and then added -- no, the -- PHILLIP: That was the wrong, you know what. ROSSI: But here's what happens. In the next three weeks, in the next three weeks, I hope I don't get kicked off the show. PHILLIP: It's okay. ROSSI: In the next three weeks, there was a fervent effort to kill Stormy Daniels. Fervent. COATES: The story? ROSSI: The story. And October 27th, NDA was signed, money was transferred. You asked what changed it. The Access Hollywood tape was crucial in getting Trump's attention. Before that, Karen McDougal was just another one of his alleged affairs, and he couldn't care less, frankly. COATES: Well, you know, Jim -- Jim, on this point, it's important because the timing of it is where it's -- I mean, these alleged affairs happened not in 2015. It happened years ago, allegedly. So, it's important to think about that. But, you know, you have David Pecker on the stand talking about these issues. We're going to likely have Stormy Daniels, Michael Cohen as well. And then you also heard Donald Trump today saying that he might very well take the stand as well. I know you've thoroughly represented him. I want to play for you what he had to say about the prospect of possibly doing that. (BEGIN VIDEO CLIP) UNKNOWN: Are you more or less likely, you think, to take the stand in the Manhattan case right now? I know -- TRUMP (via telephone): Well, I would if it's necessary. Right now, I don't know if you heard about today. Today was just incredible. People are saying, the experts, I'm talking about legal scholars and experts, they're saying, what kind of a case is this? There is no case. (END VIDEO CLIP) COATES: Okay. I have legal experts at the table right now. But I want to ask you, Jim, on that very point. If necessary, he's looking at and evaluating each witness's testimony. What was it about David Pecker's testimony, you think, that is making him to think -- if it's even necessary? Last week, he said he would testify. JAMES SCHULTZ, CNN LEGAL COMMENTATOR, FORMER TRUMP WHITE HOUSE LAWYER: So, I think that he will throw whatever he wants to throw out there, right? So, I wouldn't read too much into it. One day, he's going to say he's going to testify because he needs to defend himself. The next day, he's going to say, this case is BS, and I don't need to testify because it's garbage. So, you're going to hear that throughout the trial, especially as he absorbs the information day in and day out. I just -- I don't think you can give any logical credence to what he says about whether he testifies or not because I don't think -- I think at the end of the day, his lawyers are going to adamantly be against him testifying because there's a whole lot of stuff that's going to come at him. The judge is going to allow it. He doesn't -- they're not going to want that in the public domain. COATES: Stand by, everyone, on that very point. Figure out what the judge will actually limit testimony about. David Pecker also testifying today how the alleged cover-up extended even into the White House. [23:10:03] Now, this image of Trump and Pecker talking outside the Oval Office in July of 2017 was presented in court today. And here's how Pecker described that conversation, saying -- quote -- "As we walked out, President Trump asked me, how is -- how is Karen doing? He said, how is Karen doing? So, I said, she's doing well. She's quiet. Everything is going good." Now here to shed more light on the testimony, Olivia Nuzzi, who is Washington correspondent for "New York Magazine." You have been in and out of this courtroom following this so closely all week and, of course, this candidacy and this candidate for a long time. What's this exchange between Trump and Pecker tell you about the Trump White House? OLIVIA NUZZI, WASHINGTON CORRESPONDENT, NEW YORK MAGAZINE: You know, you remember, of course, how chaotic that Trump White House was. It was chaotic in the entirety of the four years. It ended in chaotic fashion. But that first year in particular, every day, it was a new crisis and there was a real lack of discipline, not that it really ever got better. But it all makes a lot more sense when you learn that the president sitting in office was really preoccupied with the matter of the affairs that he had sought to cover up as he sought the presidency. It was really stunning to hear from Pecker that he was meeting with Trump in the Oval Office. He was talking about this, and taxpayer-funded officials, people like Sarah Huckabee Sanders, Hope Hicks, were involved in covering up these hush money payments. COATES: Yeah. PHILLIP: I mean, to that exact point, Sarah Huckabee Sanders's name coming up. NUZZI: Uh-hmm. PHILLIP: She was a senior White House official at that time. So was Hope Hicks. Hope Hicks, though, we know from our reporting here at CNN, is likely to also testify. Did you get a sense of what she might be willing to, maybe forced to disclose in that kind of testimony? And what is the relationship right now between Trump and Hope Hicks, who at one time was somebody who was basically tied to him at the hip? Everywhere Trump was, Hope Hicks was, too. That's no longer the case. But what's that relationship like? NUZZI: I think that of all of the witnesses that the prosecution will bring in this trial, Hope Hicks will probably hurt Donald Trump the most. I think she's the only witness who might actually get some sort of emotional reaction from Trump sitting there in that courtroom. She was around all the time when I started covering Donald Trump in 2015. I mean, one of my first assignments was to profile Hope Hicks for GQ magazine. I've known her a long time. A lot of members of the press have known her a long time. She is a very reasonable person, a very intelligent person. She has a photographic memory, nearly. I think that a jury will find her extremely credible. I don't know what exactly she is going to say, but the fact that she will be testifying for the prosecution, I think is extremely significant. COATES: You don't also doubt that it will be voluntary, right? She'll be compelled to testify. PHILLIP: And once you're under oath, I mean, you've got to answer the questions truthfully. COATES: Yeah. You really do. And then, by the way, there was a story of a Trump Tower meeting, Olivia, back in 2017. The attendees included Pecker, FBI Director James Comey, and then incoming CIA Director Mike Pompeo, among others, by the way. Here's how Pecker characterized Trump's introduction to the room, saying -- quote -- "he said, here is David Pecker. He's the owner, the publisher of the National Enquirer, and he probably knows more than anybody else in this room, as a joke. Unfortunately, they didn't laugh." Now, later in that meeting, Trump would ask Pecker for updates on Karen McDougal, again. So, what does it say to you that Pecker would have been in a meeting with them? NUZZI: I mean, it really goes all the way to the top. It's hard not to think about all the president's men while watching this trial unfurl. There is something sort of cinematic and I guess Coen brothers-esque about the whole thing. I kept thinking that it's sort of like all of the resistance fever dreams of the last several years. It's almost like it's all much more literal and much more obvious than you would think that reality could possibly allow. And yet with each detail coming out of this trial, coming out of this testimony, it just gets more and more ridiculous. COATES: I love a Coen brother reference. They're from Minnesota, Abby. PHILLIP: Oh, yeah. COATES: Well done, Olivia. PHILLIP: Olivia, thank you so much. I'm back with our panel now. Joe, this is maybe a perfect opportunity to just talk about the absurdity of it all. You are the CIA director and you're sitting in a room with the head of a tabloid publication. Donald Trump bringing his tawdry excesses into the White House and the Oval Office, putting aside the legalities of it all, that is something unlike we have ever seen -- well, almost unlike we have ever seen in American history. And the degree to which it really went from the campaign all the way into the White House, that colors everything that came after that. JOE WALSH, PODCAST HOST, FORMER ILLINOIS REPRESENTATIVE: And you don't want to brush away the legalities because that is a big deal. But, Abby, it is absurd. [23:15:00] For four years -- I mean, clearly, I think there's a part of Trump that never thought he'd win in 2016, and then he won. And then he was obsessed with making sure he won and nobody thinks that Russia interfered. So, he spent all four years worrying about how people thought about how he won, and then obsessed with the 2020 race. And it's amazing that anything got done. But, Abby, you're right. It was all about the campaign, even in the White House, day after day. COATES: You know, I wonder, too, about how this all plays because, and you know this quite well, that this idea that the American public might not know the inner workings of how politics works, right? We get a lot of our news in terms of our insight and things like that from, frankly, television and what we learned about in the news. But that seems to be part of this strategy here. PHILLIP: That's the defense's argument. COATES: Yeah, to say, listen, well, this is how the sausage is made, people. Wake up, you're naive, think of anything different. The prosecutors have to overcome that. PHILLIP: Yeah. And with this -- I wonder, Kim, what you think about this jury, though. When I think about the composition of this jury, this is a Manhattan jury, people of all different stripes. But you've got a couple of lawyers in there. You've got some people who have some knowledge. How does that kind of overly simplistic argument play with them? WEHLE: Well, I was actually, when I was at DOJ, I was on a jury. They have to do that in Washington. And when that happens, that person can become the person who explains the jury instructions, explains what it means to have elements of a crime. What does it mean to have to have a burden of proof beyond a reasonable doubt? That kind of thing. That being said, when it comes to credibility and that gut instinct, that's going to be a juror by juror situation. And the jury that I was on, there were a couple of jurors that just said, I don't believe police officers, and there were witnesses that were police officers. And so, the defendant was acquitted. But this is not a helpful jury for Donald Trump. It's going to be very different if the Mar-a-Lago case in Florida ever goes forward. And there's something sort of artificial about impaneling a jury and saying, can you set aside your previous views? Can you set aside your biases? You know, I'm not a psychologist or sociologist, but I think that's difficult to ask anyone to do in day-to-day life. Everyone has kind of a sense of whether Donald Trump should be held accountable, and that, I think, is going for the prosecution and for Alvin Bragg. COATES: And, of course, we're going to have to -- looking at that jury questionnaire, they were all asked about that. It was extensive and far more elaborate than probably any of you have seen in jury selection before for that very reason. Stand by, everyone. We've got a stunning decision in another case. Harvey Weinstein's New York sex crimes conviction thrown out. It could have a hell of an impact on Donald Trump's hush money trial. I'll explain why, next. (COMMERCIAL BREAK) [23:20:00] (COMMERCIAL BREAK) PHILLIP: Today in New York, an appeals court ruling four to three to toss out Harvey Weinstein's sex crimes conviction. And now, their ruling could reverberate through Trump's hush money trial. How? Well, in Weinstein's case, the court found that the judge in that case made a mistake by allowing prosecutors to call witnesses whose accusations were not part of the charges against Weinstein. COATES: By the way, that's not all, because the appeals court all said that the judge was wrong to allow other alleged wrongdoing to be brought into questioning if Weinstein had testified. And remember, in Trump's trial, Judge Juan Merchan is all saying that if Trump wants to testify, he could be questioned about certain past legal run-ins. And by the way, this is a Manhattan D.A. case, which means Alvin Bragg will be the one to retry this case. I want to bring back in the panel here. James, this is exactly what appellate lawyers salivate over, when you're talking about so-called prior bad acts, when you bring in uncharged conduct to show a pattern of something, the M.O. we were talking about earlier. They're going to have to tread lightly now, knowing that they can't go too far without prejudicing them. SCHULTZ: Yeah, I think, look, you're going to -- you're going to see those arguments down the road about this whole line of questioning about Karen McDougal, right? Because it's really not charged conduct at the end of the day. I think -- COATES: And the doorman, maybe, too. SCHULTZ: Yeah, but I think in this case, I think it ends up because it shows a pattern of conduct. I think the probative value outweighs the prejudicial effect on it. I think a court will find that. But there is some risk associated with every witness they bring in that kind of talks about things that aren't related to the charged conduct. COATES: How about the "National Enquirer" headlines? That was a moment people were talking about, all the different discussions about not only the "catch and kill" schemes but also pointing out negative press for their rivals. WEHLE: Well, as indicated, for the judge, they have to really decide what is prejudicial, what is unfairly going to taint the defendant and his constitutional rights, and what's probative. And it's a very sensitive, nuanced, case by case, piece of evidence by piece of evidence-type issue. The judge does get some deference on appeal, but at the end of the day, that's what we're talking about. I agree, in this case, when they're trying to establish the "catch and kill" scheme, they're trying to establish Donald Trump's knowledge of it. That's probably different than the Harvey Weinstein where, listen, this guy is just a sex addict. COATES: Marcus, from your opinion, does the Access Hollywood being able to be referenced but not played, because that's when the judge did this sort of prejudicial versus probative or otherwise informative value, saying, you can't play it, it's too prejudicial? [23:25:01] But you can reference it or the fallout from it. Does that help to get ahead of what could be an appellate issue? CHILDRESS: I think it does. I think it's actually a pretty safe, conservative way of the judge to preserve the record for that appeal risk. Look, you have to have something to reference. Otherwise, the jury is, like, why is there fallout? What are we talking about here? So, you have to be able to reference it. But as a prosecutor, you also can't take it too far, right? So, reference it so the jury has a point of context, but then don't really argue it, and then continue with the evidence that's actually before the jury in court. COATES: What if the -- ROSSI: I just wanted to put in the prosecutor's argument that this case is different than Weinstein. It's for at least two reasons. The government is arguing conspiracy under New York law, and as Professor Kim knows, when you have a conspiracy, you find a starting point, which was August of 2015. That's the four-legged stool. That was the conspiracy slash scheme. COATES: Where Pecker agreed to be the eyes and ears. ROSSI: Absolutely. Hope Hicks may be in that meeting. So, the conspiracy just continues on. These events, the doorman, the Karen McDougal and, of course, Stormy, which is charged, their overt acts in furtherance of the conspiracy. Alternatively, if you don't have conspiracy, it's part of the four- legged scheme, and the doorman and Karen McDougal are part of the scheme that eventually ended with -- COATES: Stormy Daniels. ROSSI: Stormy Daniels. But I want to go to Hope Hicks. Hope Hicks is going to be an explosive witness, based on my knowledge of the case and meeting with the prosecutors in the Trump U.S. attorney's office. Mr. Jordan said it's a brag case. This started off as a Trump Justice Department U.S. attorney case. They had four brilliant prosecutors. I met with them with my client. So, it started in an SDNY. It's not a brag case. But I want to go to Hope Hicks. After the Access Hollywood tape, there was a flurry of communication between my client, Michael Cohen, and indirectly Hope Hicks, who was on the plane with Trump. And in those three weeks, Hope Hicks was conveying information from then-candidate Trump to Cohen. And you can guarantee it was all focused on how do we shut her up because it's going to affect the election. And that gets to what you said at the beginning, keep it simple, stupid. The false invoices are driven, and they are the seed and the result of affecting the election. The false invoices would not be made but for that deal. PHILLIP: Jim, are you buying that? SCHULTZ: Yeah. Look, I don't know the facts as you know them, but Hope Hicks is certainly going to be an important witness for the prosecution. She's certainly going to have to be compelled to come in. I can guarantee you Hope Hicks doesn't want to testify in this case and doesn't want to sit before a former boss. But I also know that Hope Hicks is going to come in and tell the truth, right? She is going to come in and tell the truth, you know, no matter how much it pains her to do so, to come in and testify generally. She's going to come in and tell the truth because that's who she is. That's what she'll do. COATES: Well, we'll see. PHILLIP: All right. It's explosive. We'll see what happens. Everyone, stand by for us. Just up ahead for us, are presidents immune if they order a coup, for example? That question was before the Supreme Court today, and the answer has huge implications for what Trump's January 6 trial could look like and when it could start. Inside today's arguments, that's next. (COMMERCIAL BREAK) [23:30:00] (COMMERCIAL BREAK) COATES: The second act in Donald Trump's legal double feature today occurred about 200 miles south of I-95 from New York. While some of his legal team spent the entire day in the courtroom in lower Manhattan, other lawyers were arguing before justices at the Supreme Court on Trump's claim of what he calls absolute immunity. Now, they were signaling today that they could very well send this case back to a lower court which, of course, would delay the special counsel's 2020 election subversion case. That was supposed to start back in March. It's almost May. But they also sounded skeptical about Trump's blanket immunity defense. Trump lawyer, John Sauer, argued that Trump's actions were official acts of the office. But in one exchange, the Trump appointed- justice, Amy Coney Barrett, questioned what exactly was an official act and what was a private act to benefit Trump. (BEGIN VIDEO CLIP) AMY CONEY BARRETT, U.S. SUPREME COURT ASSOCIATE JUSTICE (voice-over): 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 (voice-over): As alleged, I think we dispute the allegation but that sounds private to me. BARRETT (voice-over): 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? SAUER (voice-over): That also sounds private. BARRETT (voice-over): 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 co-conspirator attorney directed that effort. SAUER (voice-over): You read it quickly. I believe that's private. BARRETT (voice-over): Yeah. (END VIDEO CLIP) COATES: With me now is Jack Rakove, Pulitzer Prize-winning author, historian, and professor at Stanford. He'd also signed on to an amicus brief to the Supreme Court rejecting Trump's immunity claims. Thank you for joining us this evening. It sounds like this immunity question may not be close to being resolved completely and could actually go back to the lower courts. What is your opinion of if that were to happen and you don't get the answer resolved fully by this Supreme Court? JACK RAKOVE, PULITZER PRIZE-WINNING AUTHOR AND HISTORIAN: I suppose my basic answer would be a political disaster for the country as a whole. [23:34:57] And I think the basic reason for that is that, speaking in a sense on behalf of the founders, which is what the historians group of whom I'm a part have been studying, I think the framers of the Constitution, the founders more generally, would have expected a matter of this urgency to be resolved in advance of an election and not to be kind of slow walked at the quirky pace we've been moving at so that people would not be able to have an informed judgment about the qualifications of a leading candidate. COATES: I mean, as you described it, it makes sense to think that the idea of whenever you have a president, you want some urgent clarification as to what the bounds of their power actually is. Elections are important. But also, there are -- is a president right now. I wonder what you made of the hypotheticals that were proposed about the future. There was not a lot of time spent on January 6th or the election subversion case, but more, as I think it was Gorsuch who says, deciding a case for the ages. What did you make of the focus from this court on this issue? RAKOVE: Well, the issue is so anomalous, just as Trump's behavior is so anomalous, that the idea that you can take the, on the one hand, quirky, but also really deeply troubling circumstances that surround January 6th, and say that on the basis of that one situation, you can decide a case for the ages, will strike most legal commentators, certainly most historians, it's being a deeply problematic statement. I think Justice Barrett, in her exchange with Sauer, the petitioner's attorney, I think she nailed the key points, that there were a number of very specific matters that one should focus on. Justice Alito, when he intervened in his own way, kept trying to deny the importance of the immediate issues to kind of speculate about what might happen in the future. You know, we have an urgent issue right now. That issue needs to be resolved. We can worry about the future when the future comes. We have to get through the current crisis of the republic, which is why the court should be acting expeditiously. COATES: Well said. I mean, listen to this exchange as well between Justice Elena Kagan and Sauer, about this hypothetical question of prosecuting a former president who, for example, staged a coup. (BEGIN VIDEO CLIP) ELENA KAGAN, U.S. SUPREME COURT ASSOCIATE JUSTICE (voice-over): I don't feel like leaving office. I want to stage a coup. Is that immune? SAUER (voice-over): If it's an official act, there needs to be impeachment and conviction beforehand, because the framers viewed the writ that, that kind of -- KAGAN (voice-over): If it's an official act, is it an official act? SAUER (voice-over): If it's an official act, it's impeachment. KAGAN (voice-over): Is it an official act? SAUER (voice-over): On the way you've described that hypothetical, it could well be. (END VIDEO CLIP) COATES: Now, of course, in your amicus brief with other historians, you forcefully argue against this assertion that a president can only be prosecuted only after being impeached and convicted. So, what do you make of his answer that he gave today? And I would note, he also doubled down earlier on this assertion that a president could order, say, CL Team 6 under an official action to even hurt a political rival. RAKOVE: Well, from a historian's perspective, you know, we don't deal in hypotheticals. We deal with things that -- things that actually happened and views that people actually adopted. I think the most important thing we'd say is that in the 17th and 18th century, both England and America, the dominant theme in constitutional thinking was how do you cabin, how do you control, how do you restrain, how do you constitutionalize executive power. You know, Sauer, the attorney made a big point of appealing to the vesting clause of Article 2, which says the executive power shall be vested in a president of the United States. That clause has been carrying a lot of interpretive weight recently, probably more than it really deserves because it's adopted very late and without much discussion. But if you ask the question, what is the nature of -- what is the nature of the executive power that is vested in the president? I think the historian's first definition would be that he shall take care that the laws be faithfully executed. And I think the best commentary on this actually came from John Dickinson at the federal convention where he says that the real virtue of vesting the executive power in a single person, it's not the question of acting with energy and with dispatch, those were two terms that the framers used, it's also the question of responsibility. So, the idea of recognizing this open-ended, unconstrained, in certain ways unimaginable degree of immunity, there's no way you can square that with the dominant value of Anglo-American thinking from the late 17th century down into the time of the revolution and the Constitution, which tries to make executive power responsible, and indeed which concentrates the executive power in a single person to enhance that end. So, the whole immunity argument would strike all the historians, my friends and colleagues who were the co-signers of the brief. It just strikes us as being in a certain sense historically nuts. [23:40:01] COATES: And that's why we need historians. Thank you so much, Jack Rakove. Thank you so much for joining us tonight. I want to bring back in our panel. PHILLIP: Historically nuts. I like that. (LAUGHTER) UNKNOWN: That's a good one. COATES: That might be a new brand. Something called Planters (ph). Marcus, you were actually in the Supreme Court. I'm just wondering what that was like in those moments. We were all listening to it and getting a sense from the outside. But what was the atmosphere like in there? What was that? Was it tensed? Was it relaxed? Tell me about it. CHILDRESS: So, I remember the very first primetime hearing from a couple of summers ago. It was probably the heaviest feeling I'd felt before hearing. We wanted to get it right as a committee. And you just felt like stressed before it started. I felt the similar way -- COATES: History was in waiting for you to act. That's probably what's it. CHILDRESS: It really was. Our work was going to be judged for history, right? And I felt like the Supreme Court, you could tell the justices could tell that what they were going to decide in the next month or two would be remembered historically. I mean, that's kind of how they started out. Trump's counsel saying that no president, as we know it, will be the same moving forward if they don't have absolute immunity, right? And so, it just felt like it was very historical moment. There were a few moments where jokes were made, like Justice Alito saying you can get a ham sandwich indicted. That made us laugh a little bit, to bring it back. But it was a very tense, you know, two hours and 45 minutes in that courtroom. PHILLIP: I mean, I do not understand why the Supreme Court decided to take this case. I still don't. And especially now after today because it seems pretty clear that they could -- the court has leeway to decide what they take, what they decide to settle and what they don't. There are a lot of legal issues out in the world that are not settled. Not all of them need to be settled right now. This one does not strike me as something that needs to be settled right now. Why are they doing this? ROSSI: Because Donald Trump is a candidate for president and several of the justices were appointed by him. But I just want to -- PHILLIP: Do you think also that they might be worried about establishing those boundaries of where the presidential power is in the event of a Donald Trump presidency in which he might, you know, test some of these things? ROSSI: I agree. And I predict this. Justice Roberts, I believe, will be thinking about Dred Scott, Plessy versus Ferguson, the Nixon tapes case, and he will know that where he stands, majority or minority, will haunt him for the rest of his life. And he wants to establish himself in history. They read the papers. So, I predict -- I have -- I I'm being a Pollyanna. I think Justice Roberts is going to do the right thing. And you could possibly see a five to four opinion rejecting absolute immunity. And it's Justice Roberts and the four women. I predict that could be it. I do want to add one last thing. Nobody has mentioned this. There should have been eight justices hearing that case today. Justice Thomas -- Justice Thomas. I teach legal ethics. Professor Kim does. There is no ethics lecture at law schools or any level that would say there's not an actual conflict or at a minimum an apparent conflict. He should not be hearing this case. Period. End of story. WEHLE: Well, you know, it's funny we're talking about no more kings, the professor, this idea that historically the whole point of the revolution was no more kings, and we've created nine kings. We have a Supreme Court that essentially has no accountability. And that's why we're in a position where someone is with these egregious conflicts of interests that really give him an incentive to favor Donald Trump because his wife was involved, et cetera. There are all these public conflicts or the justices being, you know, jetted around by billionaires with interests before the court. But there's no enforcement mechanism for ensuring that these people are nonpartisan other than life tenure, which ironically makes them even more, I think, above law in this moment. So, I wasn't frankly that surprised that they took it for that reason. It's almost just candy. It's too tempting. But the problem, to Abby's point, was the way they frame the issue on appeal. They could have framed it very narrowly -- PHILLIP: Yeah. WEHLE: -- like Justice Barrett did. What -- when you're trying to take an election from the voters, a legitimate president, but through violence, using the power of the office, is that immune? And that's generally what judges do. They call balls and strikes on narrow cases. And here, the judges, the justices, have given themselves the power to legislate, to basically put a new -- brand-new constitutional provision in for constitutional immunity and make up a bunch of tests and factors. COATES: You were a former legislator. What do you think of that? WALSH: I want to yell. I want to give a -- I want to belt out a non- legal scream. Listening to the last 15 minutes, this split screen of hush money to a porn star and a guy who tried to overthrow an American election, and the hush money to the porn star is the only trial that we're going to have this year. [23:45:00] Nobody is going to address the -- Trump caught such a freaking break that this is the first and probably only trial. He tried to overthrow an American election. I served with Jim Jordan. I don't want to scream. I'd like to punch Jim Jordan. No, you -- the voters deserve to know before they vote in '24 if the Republican candidate was convicted of trying to overthrow the '20 election. The voters need to know that, and we're not even going to get to it now. COATES: Well, you look at these issues, though, and to your point of the, why not, why now, above all things, well, they could have easily just not taken up the case and the lower court ruling would have stood, right? They could have had that. CHILDRESS: Or in December. Or in December. COATES: Or in December before all this happened. PHILLIP: Or they could have said, narrowly, let's deal with the Trump part of this. We don't need to answer all these. It's called a can of worms, as my mother would say. He -- they opened up a can of worms. And here we are, we'll have to deal with it. COATES: Well, we'll have to deal with it again. And, of course, we don't know when they're actually going to rule. They have until the end of their term. And they usually wait for these media issues to the very end, unfortunately. Stand by, everyone. A lot of questions at today's flurry of Trump legal developments, and we've got answers to your live calls and questions, next. (COMMERCIAL BREAK) [23:50:00] (COMMERCIAL BREAK) COATES: An absolutely huge day in the Trump legal world. I know you all have a lot of burning questions and we're taking your calls tonight. (PHONE RINGING) I love that little ringtone. Who's better to help answer them than our fabulous panel. Again, if you want to participate, just go to CNN.com/TrumpTrialQuestions, fill out the form, type in your question there, and then we'll reach out to have you call in as a trial unfolds. Let's get to our first caller tonight. We've got George from Newton, Massachusetts. Hey, George, what's your question? GEORGE, CALLER FROM NEWTON, MASSACHUSETTS (via telephone): Okay. So, many politicians are routinely guilty of political deception. So, how is the boundary between criminal and non-criminal political deception defined? And also, would the judge provide some guidance on this distinction to the jury? COATES: Hey, that's a great question. I'll let Marcus take that answer. CHILDRESS: The judge is actually going to instruct them on the crime at stake. So, let's say the election subversion case. It's the conspiracy to defraud the United States, to overturn the election. And the evidence in support of that is pressuring state legislators, calling Georgia looking for 11,700 votes, creating a fraudulent state of electors. That's the crime. It's not the deception piece. It's conspiring to overthrow the election. And so, you always got to tie it back to a criminal statute. It's not just political deception here. There's a criminal statute at play, the judge will instruct the jury about it, and the evidence that can be considered and how it can be considered. COATES: So, is that line so blurred for politicians? WALSH: It's completely blurry. And this goes to what you said at the beginning of this hour. Trump doesn't think this is a big deal. So, what? Everybody -- you know, you cover your tracks because you're trying to get elected. You pay off a porn star. Big deal. And I think a lot of voters think the same thing. COATES: That's unfortunate. Well, next up is Marva from Columbia, Maryland. Columbia, Maryland. Marva, what is your question? MARVA, CALLER FROMO COLUMBIA, MARYLAND (via telephone): Hi, Laura. COATES: Hi. MARVA (via telephone): I watch your show. COATES: Oh, great. Thank you. MARVA (via telephone): My question is, we've heard the names of some of the witnesses that are going to testify for the prosecution in the Trump trial, but has the defense put out a list of the witnesses they plan on calling to testify on Trump's behalf? COATES: That's a good question you've asked because Trump's lawyer said that they do plan to call at least two witnesses in this case. One is Bradley Smith, a former commissioner of the Federal Election Commission. The other person is Alan Garten, the top legal officer of the Trump Organization. And, of course, Merchan does have some limited scope here. But Jim, what's your take? SCHULTZ: In the pretrial submission, the both parties have to disclose to the court who they're going to call. Now, in the case of the prosecution, I think they've held back some of the names so far. The judge has the discretion whether to turn those over to defense. He has given a couple of names, but not all of them at this point. COATES: What do you think? Would you turn over your whole list at this point? ROSSI: No. Defense attorneys usually get a little break. You're required to disclose a little bit of the list. You can always say, Your Honor, when the trial began, we weren't sure what they were going to say on the prosecution side, so we're adding these witnesses at rebuttal. So, it's not uncommon for the defense to give a short list. COATES: Gosh, I remember just a couple days ago when the prosecution was fighting over whether to hand over the name of their first witness on Sunday. Lyle from Bellingham, Washington. What is your question? Hey, Lyle. LYLE, CALLER FROM BELLINGHAM, WASHINGTON (via telephone): Hello, Laura. Thank you for taking my call tonight. COATES: Thank you. LYLE (via telephone): My question is -- my question is, if after all the evidence is presented against Mr. Trump in this case, and the trial ends in a hung jury, can Mr. Trump be tried again on the evidence? And if so, how soon afterwards? COATES: It's a great question. Let's go to Kim. WEHLE: Well, if it's a hung jury, they couldn't actually try him again. But I think given the timing and given that you're talking about a former president and given that there are some flaws in the case, that probably means Trump walks. COATES: Hmm. Is that over for all of them? The idea of a hung jury, though. How about the idea of double jeopardy? They want to know about that as well. Would that attach instantly now? It's done? WEHLE: I think double jeopardy attaches once the jury is seated. But if there are problems in the conviction, then in certain circumstances, there can be a second trial. COATES: Really important. Thank you so much for our panel for helping to answer these really important questions. And thanks to everyone who also called in. Hey, do you have a question you'd like answered? Well, we want to hear from you. You just got to submit your question at CNN.com/TrumpTrialQuestions. Thank you all so much for watching. [23:55:00] I love being next to Abby Phillip. Our coverage continues. Anderson Cooper is next. (COMMERCIAL BREAK) …