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Legal View with Ashleigh Banfield

Two University of Oklahoma Students In SAE Video Expelled; Politics and Repercussions Of Letter GOP Senators Sent to Iranian Leadership; Where Is The Murder Weapon In Aaron Hernandez Trial?

Aired March 10, 2015 - 12:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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ASHLEIGH BANFIELD, CNN HOST: Breaking news here at CNN. We are just getting word that in the wake of the controversy of students singing a racists chant on a bus at Oklahoma University, specifically the Sigma Alpha Epsilon university or fraternity, two students have now been expelled.

Our Nick Valencia is lived in Norman, Oklahoma. He's been covering this story. What do you know about the expulsions, Nick?

NICK VALENCIA, CNN CORRESPONDENT: This news was just announced a short while ago on President David Boren's Twitter account in the last to a handful of minutes. He says he's taken action expelling two students who played a leadership role in this racist video that surfaced over the weekend, posted initially by their campus newspaper as well as a group here. An alliance of black students known as Unheard, which sent the tweet video to the president, notifying him that -- from then on, went viral.

I want to go ahead and read the statement from President David Boren with the University of Oklahoma, Ashleigh it say's, "I have emphasized that there was zero tolerance for this kind of threatening racists behavior at the University of Oklahoma. I hope that the entire nation will join us in having zero tolerance of such racism when it raises its ugly head in other situations across our country." He goes on to say, "We will continue our investigation of all students engaged in the singing of this chant. Once there identities have been confirmed, they will subject to appropriate disciplinary action."

Now we have reached out for comment to that group, that Unheard that posted this video. So far we haven't heard back from them, but this just in to CNN, President David Boren from the University of Oklahoma, expelling two students who played a leadership role in that racist video chant surfacing over the weekend.

Ashleigh.

BANFIELD: Can I ask you Nick -- and it maybe a little early to ask this certainly to find the answer, but two students -- and we clearly saw one student who seem to be taking a leadership role in the chant, standing up. There where two angles, very clearly you could see his face. But there were other students on the bus, other than two. Is this just the tip of the iceberg or will there be more and do we know if one of the students is the person we're seeing on the video right now, the one who was standing in his tuxedo leading the chant?

VALENCIA: Yeah. That person has not been identified officially and if its any indication the language that the president of this university has used, they're saying all options are on the table and anything within his authority and in his power to discipline this individuals, as he has the fraternity, he says his going to take that action. We don't know who exactly he expelled from this campus but we do know that he says it was the two that were taking a leadership role in this.

We know that other students who are on that bus not associated with the fraternity -- we mentioned short time ago on our last report that Tri Del, the sorority here is also cooperating with the investigation. This may just be the first shoe to fall, Ashleigh.

BANFIELD: All right. Nick Valencia doing the job for us in Norman, Oklahoma. Again, the headline here, a two students have now been expelled in the wake of that video that surfaced from SAE, the fraternity, a bus party in which racists chants were heard, video taped and secretly those video tapes made there way to the college paper which made their way to the media.

And its only been about 48 hours, but the actions have been swift. So far, two students expelled, we will continue to update you if there will be more.

In the meantime, if you were in New York City, you had a newspaper like this this morning pointing out senators, and beneath it, the word "Traitor". Wow, that's huge, But these senators were among 47 who decided to write a letter to Iran saying that they didn't like with their President was up to and that any deal he strikes with them, well, they might just undo it when his gone. So is that legal? Is it moral? Is it right and so many more questions? That's next.

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BANFIELD: Democrats are certainly not pulling any punches right now when it comes to that letter that Republican senators sent to Iran. That letter warned that any nuclear deals that Iran might make could expire when President Obama leaves his office, and then effectively be reversed. The critics are calling this letter betrayal and sabotage, and some are even going as far as calling it treason. Hold the phone there. We're going to talk about treason in a moment and whether this rises to that level. But President Obama isn't pleased with this. He's accusing the 47 Republicans senators who put their signatures to this letter of siding with America's enemies, that's pretty strange stuff, too. And Vice President Biden is calling the effort by GOP lawmakers, "Beneath their dignity."

OK. So there's all that stuff going back and forth between them, but what about the law. Here's the guy on the law, CNN Legal Analyst Danny Cevallos, who also law, to talk about the possible legal fallout from this letter. There is this little known act that's about to become not so little known, called the Logan Act. And I just want to read for our viewers what the Logan Act says, "Any citizen of the United States, who," and I'm going to abbreviate here, "who, without authority of the United States, carries on any correspondence with any foreign government, with intent to influence any foreign government, in relation to any disputes or controversies with the United States, shall be fined or imprisoned or both." OK. That's pretty strong language and it seems very clear.

What in this doctrine here or this statute--

DANNY CEVALLOS, CNN LEGAL ANALYST: Statute.

BANFIELD: -- stands out to you in this case?

CEVALLOS: Well, what stands out they said it was enacted in 1799, that's when President Adams was leading us in -- when this law was enacted. Just to give you an idea, not significant. Because we have a doctrine called "Desuetude," which means that if -- it's basically use it or lose it. If we have a law in books and we never enforce it, then after awhile, it's sort of dies on its own, and that's exactly what's happened here. The last indictment under this act was 1801 or 1803 or something like that. So, it gives you an idea how rarely used this statute is.

That being said, in the time since it was enacted, our views of the First Amendment, and by our, I mean, our federal courts views of the First Amendment, have expanded dramatically. We look at the First Amendment as providing many more protections than we used to.

So a modern court would likely look at the language in the Logan Act and say, "That is unconstitutionally vague." In other words, it's so broad that it doesn't really tell a citizen what is prohibited and what is not.

BANFIELD: Can we put the statute back up on the screen again, because right off the top what stood out to me was the whole "without authority" part, "any citizen of the United States without authority," doesn't Congress have authority to communicate? They're not doing this in a back channel way. This is not a secret.

CEVALLOS: You're a true litigator, Ashleigh, because you're exactly right. That is a critical line in the Act, because what exactly does "without authority" mean. It doesn't say in the statute without authority of the president or the executive branch. It just says without authority of the United States, and you hit on a very good point. Is congressman always technically acting with some modicum of authority of the United States? After all, it's on their letterhead.

And since courts really haven't developed the case law on this Act, it's almost never been used. The only way to find out is if a prosecution is brought. But since that hasn't been done since not this century, not late century, not the century before, how do we possibly know what the outcome of this?

BANFIELD: So is this unfair, traitors, that's absolutely out of the question. Treason and traitors, no, no go. No way?

CEVALLOS: Well, if we look at treason -- if we look at traitors as an indictment of treason, I think that maybe, a little bit of preliminary at this point. Yeah.

BANFIELD: In any case, it certainly making for a lot of angry talk and, you know, division in the whole--

(CROSSTALK)

BANFIELD: -- effort of bipartisanship. Danny, thank you. I knew you'd have a legal view on it. Thank you. I appreciate it.

All right. So I said to you last hour that CNN's bringing you some breaking news on the expulsion of two students who were involved in the racist bus rant at O.U., Oklahoma University, specifically the SAE Chapter, you know, on campus, that's a fraternity. I've got the letter. I just got it in my hands from the president. It's short, but it is not sweet. I'm going to read this letter for you in a little bit. It is the letter from the president to those students, outlining exactly what he thinks of them and exactly what he thinks of their behavior and exactly what he is doing, it's awesome.

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BANFIELD: Back to our breaking news. Two students who were attending O.U., that's University of Oklahoma, are not attending anymore because they just got this letter from their president. CNN's breaking this news. I want read the letter to you. This is what David Boren, the president of O.U., sent to students who apparently were pointed as leaders, taking a leadership role in that racist bust chant that was heard over the weekend.

"This is to notify you that, as President of the University of Oklahoma acting in my official capacity, I have determined that you should be expelled from this University effective immediately. You will be expelled because of your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others." And then it goes on to offer this. "You have the right to contact the University if you feel that this decision is not appropriate and you may be represented by legal counsel." But those two students better act quickly because they only have till this Friday to contact the university's equal opportunity officer.

Boy, would I like to see that argument being made in that office. But if it's going to be made, it has to be made in the next couple of days.

I want to bring in Joey and Danny on this one.

Something stood out to me in this letter. The president acknowledges that these two students, who took on a leadership role in that racist bus rant on that bus, created a hostile educational environment for other. Perhaps that is what got him to heft, the legal heft, to kick them out of school, but could it also comeback to bite him. And that anybody who feels offended by what happened and feels that they were in a hostile education environment, can sue the university.

You can both have your say.

JOEY JACKSON, HLN LEGAL ANALYST: I think it's a very fair point but the reality is how extreme and pervasive. That will be examined. Who is actually affected? We're looking at a situation where people on a bus, outrageous conduct, he's disciplining them for that. As a result of that, they're expelled. Remember, the basic position here is that it is a privilege, not a right to attend a university. I would certainly think that anybody would have redress if you feel that you're subjected to an environment which is offensive, which is abusive, which is extreme and absolutely you have recourse to sue. And what you're suggesting, Ashleigh, is this is an admission.

BANFIELD: It's a big admission.

JACKSON: Is that what you're saying? It's an admission by the university that the environment was so hostile. I'd certainly would think it would give people a basis who are uncomfortable to file, Ashleigh.

CEVALLOS: Wouldn't it be--

BANFIELD: What about the other singers? There weren't just two singers, Danny. There were several singers and if two singers who were leaders in the song created a hostile educational environment. Didn't the other singers do the very same thing?

CEVALLOS: Well, the existence of that hostile environment probably isn't enough to make it actionable. There must be some sort of leadership involvement and that's probably, like you said you've noticed, that language is in the letter and if there was a hostile environment, someone may try their hand at a suit. But I think that the relationship between the university and the fact that even though this was an event that arguably is sanctioned by the university, it doesn't necessarily follow that the university can be held liable for those activities. But you're absolutely right. The reason I believe that they say hostile environment is because one of the other exceptions to the First Amendment, fighting words, really wouldn't apply here because this was not directed at an individual is directed to other people on a bus.

However, the hostile environment, I think, strategically gets them to that exception. But make no mistake about it, this will be challenged. The student code will be challenged under the First Amendment and it could potentially be overturned--

(CROSSTALK)

JACKSON: I think that code is upheld. You're talking about an institution that has a right to police its students and to ensure that the environment is one that's safe and effective to everyone without racism.

BANFIELD: And like I said, that is an embarrassing argument to have to make if you're those two students. In any case, we're still watching to see if there's any other students that will be expelled as well. But so far the headline today, two students expelled. The president notifying them by letter.

And turning now to the Aaron Hernandez trial and the burning on everyone's mind, where is that murder weapon, because it's been talked a lot about.

Have a look at this picture. Is that it? Is that a gun in his hand? What about that picture? Is it good enough to tell? And what about the efforts to make the picture better, is that fair? These are big questions for people who have to determine if that man is guilty or innocent of killing one of his friends.

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BANFIELD: One of the biggest mysteries in the Aaron Hernandez murder trial is where is the murder weapon? For the first time renouncing video of the former NFL star at home in the hours just before Odin Lloyd was shot and killed on June 17th back in 2013.

Now, the prosecution is saying that that black thing in the highlighted circle, well, it's obvious that is the murder weapon. But the defense said, "Hold your horses. It's not that obvious. It's something else," and both sides are still fighting over how that key issue will even be presented to the jury. You're seeing it but they're not supposed to be watching the news.

CNN's national correspondent, Susan Candiotti is outside of the courthouse in Fall River, Massachusetts. So we are still arguing over enhancement of video and how to depict those pictures to the jury and be fair in doing so.

SUSAN CANDIOTTI, CNN NATIONAL CORESPONDENT: That's right. That's one of the things the defense has filed a motion about. It has yet to be argued fully before the judge. But they are going to say among other things that the prosecutors have employed people to use enhancement techniques to further clarify those pictures, some of which are expected methods but some of which, the defense said, are just not fair and shouldn't be done, and they've even have their own retired FBI expert that is weighing in on this.

So, this will be argued before the judge and she ultimately will be able to decide what parts of those video enhancements will be shown to the jury. Ashleigh?

BANFIELD: What's the defense saying the black object in his hand is?

CANDIOTTI: Well, they haven't said exactly but they're kind of skirting around the edges. They have suggested, hey, maybe it was a TV remote control. Maybe it was an iPad or maybe it was something else. We haven't seen any proof of that and they've been asking some witness already. Oh, you saw a TV remote in the house, what does it look like? But we've been getting very general descriptions.

So it will be interesting to see whether this will in the end be a battle of the experts. Someone from GLOCK handgun company will be testifying for the state and then the defense of course will be trying to tear that testimony apart. Ashleigh?