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Legal View with Ashleigh Banfield

The Debate Over the Confederate Flag; Does SC General Assembly Have the Votes to Remove the Flag?; Walmart and K-Mart to Stop Selling Confederate Flag Merchandise; Confederate Flag: Emblem of Heritage or Hate? Aired 12-12:30p ET

Aired June 23, 2015 - 12:00   ET

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

[12:00:25] ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone. I'm Ashleigh Banfield. And welcome to LEGAL VIEW.

Not only has the Charleston church massacre not set off the race war that Dylann Roof so desperately wanted, not only has it brought about unity over division, forgiveness over revenge, but it may well succeed in eradicating what many consider a symbol of racist oppression, a symbol that had seemed indelible. Right now church leaders, public official, activists and ordinary citizens are rising up at the South Carolina Capital, demanding that lawmakers take down the Confederate battle flag once and for all from the state grounds.

My colleague, Ana Cabrera, is on the steps of the statehouse.

Set the scene for me there and tell me what comes today within that legislature.

ANA CABRERA, CNN CORRESPONDENT: There's so much anticipation into what's going to happen when the legislature reconvenes in about an hour from now, Ashleigh, and all these folks are trying to apply pressure on the lawmakers of this state to get this issue of removing the flag to the forefront and to take action immediately.

I want to take a look at all the people who have gathered here. We've talked to many of them who've come from different parts of the state. You can see young. You can see old. You can see black and you can see white. But they are united behind the cause of removing the flag which is still standing, by the way, next to the Confederate war memorial right now because it's going to take the legislature to bring it down.

And we're seeing all these folks, despite just how hot it is, it's a sweltering day here in South Carolina. What we can tell you based on the folks we've been talking to, senators and local representatives here in South Carolina, they anticipate that when the legislature gets back together here, the general assembly at 1:00 this afternoon, less than an hour from now, they are initially coming in to talk about the budget and some other issues that were left over on this session's agenda. They anticipate lawmakers will come forward with some kind of a resolution or amendment, hoping to get the flag added to this current session. And in order for that to happen, there has to be a two-thirds majority, is our understanding, in order for them to even bring this issue up during the current session. So that is first thing's first. Now, beyond that, in terms of actually removing the flag itself, I can

tell you that there was a deal that reached back in 2000 when the legislature removed the flag that was flying over the capital dome and put it in its current place over my shoulder here by the Confederate war memorial. And in that deal that was drafted back in 2000, there was wording such that if they wanted to move or even do anything with the current location of the flag, it would take two-thirds majority to agree on that as well. So there is still a lot that could happen here this afternoon or possibly this could get drawn out into days or weeks still, Ashleigh.

BANFIELD: Fascinating to see all of those people behind you effectively voicing what they are under the banner that flies above them, the Confederate flag. Ana Cabrera giving us the details on legislatively what it will take.

And we're going to dig a lot deep into that, but right now the domino effect. If some in South Carolina statehouse need an example of how to pivot on a delicate issue, they can look to the GOP presidential hopefuls because several voice their opposition to flying the Confederate battle flag after South Carolina's Republican governor came out against it yesterday.

(BEGIN VIDEO CLIP)

GOV. NIKKI HALEY (R), SOUTH CAROLINA: But this is a moment in which we could say that that flag, while an integral part of our past, does not represent the future of our great state.

(END VIDEO CLIP)

BANFIELD: Jeb Bush promptly tweeted, quote, "kudos to Nikki Haley and all the South Carolina leaders standing with her for doing the right thing." For his part, Scott Walker says, quote, "I am glad Nikki Haley is calling for the Confederate flag to come down. I support her decision," end quote. John Kasich and Rick Perry likewise decided they, too, want the flag removed. But Marco Rubio is sticking to his original view that it is South Carolina's decision.

Assuming the will is there, the time is right to remove the Confederate battle flag from the spot it was given 15 years ago on the South Carolina capital grounds -- and that is a very big assumption at this point -- technically what is it going to take? I told you we'd drill down on it and I mean it.

[12:05:05] So I'm joined now by the experts in this issue. James Smith, Democratic state representative, is in Columbia, and from Charleston, I welcome attorney and law professor Debra Gammons.

So I'd like to start with you, Representative Smith, if I can. I was sort of astounded to see your position is not what everyone thinks it is. That it's a two-thirds majority in both of those houses, which is effectively a super-duper effort. Maybe not so much? Why do you say that?

JAMES SMITH (D), SOUTH CAROLINA STATE HOUSE: Well, you know, a couple things. First, there is a two-thirds vote requirement to get this issue, to get the Confederate flag on the agenda. And that's a constitutional -- that will be taken today. That will be taken at 1:00 today. And I feel confident that my colleagues, Republicans and Democrats, are going to come together, follow the leadership of Governor Haley and get this on the agenda.

The question of two-thirds. I was on the conference committee on the 2000 compromise. I was there when it was written and there were things that were in place that we knew would be issues in the future. And one of them was this requirement for a two-thirds majority. And I just fundamentally believe, even those that wanted to keep the flag and secure it against future general assemblies, that constitutionally that wasn't going to hold water. That fundamentally you cannot make that two-thirds super requirement obligation by statute on future general assemblies. And so I anticipate possibly seeing litigation on that issue.

But the bottom line is this. I think we will be able to take action, collectively, house and senate, on a simple majority vote. And I think that will carry the day. My hope is ultimately actually that we do have a unanimous vote on this issue. That we have far in excess of two-thirds vote in making this decision, but I assure you that we will not be required to have that.

BANFIELD: So, Professor Gammons, the representative says that he anticipates, but -- the litigation -- but you think without question the law does not say this. Weigh in on where you see this battle as being -- as struggling.

PROF. DEBRA GAMMONS, CHARLESTON SCHOOL OF LAW: Well, I don't see it as a battle. What I see and speaking with my good friend James is that once the legislators pass a law, it is a law. And simply because some think, oh, now it's unconstitutional, they're not able to disregard the law. What they can do is, one, draft a bill to change it, or go to court and make that change.

BANFIELD: So I guess that the -- whatever the issue becomes, whether it is a litigated issue or not, is it possibly a moot point, representative, in terms of the number of people in your chambers who may have had the same change of heart that those 2016 hopefuls have had? My question is, are you going to blow away the two-thirds majority regardless of what the law says?

SMITH: Yes, I -- honestly, at this point, and particularly if we do what I think we should do is just take this issue up right now, I think we're going to have far in excess of a two-thirds vote in both chambers. And I'm very encouraged by what I see in my whole state, actually, in response to this awful tragedy last week. It was right to take this action before nine innocent lives were taken from us. But it's certainly right now. And I know my dear friend Senator Clementa Pinckney would urge us on and would call us all together to take action on this issue as we did together when we served together.

So I honestly believe we'll have in excess of a two-thirds vote. But I want the people of our state to know that that is not a show-stopper. We will -- we will be successful in our efforts and I think the professor is right, we are going to get this done.

BANFIELD: So, professor, I want you to dove tail off that, if you could, for me, and that is this. Whether this vote goes through, if the flag comes down, it's my estimation that you feel this is just symbolic and we are missing the boat here. We're missing the point. And the point that the president was trying to make, he may have used the "n" word, but the conversation shouldn't have been about that, it should have been the number of ninth grade dropouts, the number of people that need help on a much deeper, thicker, cultural level in order to make race relations better. Can you -- can you enrich that for me?

GAMMONS: Well, the focus ought to be on the nine people who were killed in this church and saying those names and remembering those names. And then the second focus should be on dropouts. We've got to do more about engaging our children, our students, in our schools. South Carolina, as you know, has a high dropout rate. And what I would like that see is everyone who's concerned about the Confederate flag go into a school, go into a middle school, go into an elementary school, go into a high school and volunteer. Go out into neighborhoods where drugs are rampant and volunteer. That's where we will see change. That's where we will see a difference.

[12:10:04] A flag, a battalion flag, will not make that change. People will make that change. And we can do that. I want everyone who's visiting here in our beautiful, beautiful city of Charleston to remember that when they go back to their homes in these other states, remember that. Go out and volunteer. Make a difference. Actions speak louder than words.

BANFIELD: Professor Gammons, good to have you on today. I appreciate it.

Representative Smith, thank you also for being on.

I just want to make a quick note that Representative Smith will be in that 1:00 p.m. vote that you heard Ana Cabrera mentioning. That vote essentially to put this issue on the agenda. So we're going to continue at CNN to follow the movement in that great state and we'll update you.

And moving the Confederate flag from atop of the capital dome to a nearby memorial was a compromise. It was intended to end the fight once and for all. Not quite. Coming up next, a guy who knows a thing or two about southern culture, a former congressman you may know better as Cooter. He's going to share his thoughts.

(COMMERCIAL BREAK)

BANFIELD: So far Walmart, Sears and Kmart have all pledged to stop selling the Confederate flag merchandise. And this morning, the Walmart CEO told CNN it was a no brainer.

(BEGIN VIDEO CLIP)

[12:15:00] DOUG MCMILLON, CEO, WALMART: We just don't want to sell products that makes anyone feel uncomfortable and we felt like that was the case. This was the right thing to do.

UNIDENTIFIED FEMALE: Were you shocked to see that kind of merchandise on Walmart's platforms?

MCMILLION: I was surprised, yes.

UNIDENTIFIED FEMALE: What was your reaction?

MCMILLION: Let's don't sell it.

(END VIDEO CLIP)

BANFIELD: For its part, the Flag Manufacturer's Association of America says, quote, "we don't want to cause someone continued pain because of what the Confederate battle flag represents." It continues to say, "we'll definitely spend time as an industry group discussing that." We'll have more from the Walmart CEO coming up next hour on CNN.

It is a scorching day in the South Carolina capital where opponents of the Confederate battle flag are demanding it be removed in the wake of last week's mass killing at the hands of a white supremacist. My CNN colleague Don Lemon joins me now here in New York. And from Washington, we're joined by Ben Jones, who is an actor and author and former U.S. congressman and chief of heritage operations for the Sons of the Confederate Veterans. But you may best remember him as Cooter from "The Dukes of Hazzard." And I just want to pause for a moment to listen.

(BEGIN VIDEO CLIP)

"THE DUKES OF HAZZARD" THEME SONG: Just the good old boys, never meaning no harm, beats all you never saw been in trouble with the law since the day they was born.

(END VIDEO CLIP)

BANFIELD: You have a smile on your face. And I've got to be honest, there's so many people just in my building where I work who look fondly upon those days of "The Dukes of Hazzard." We all have our memories. We all loved the show. And yet that good old boys right off the top seems to have taken on a different meaning in the ensuing 30 years. Is it --

BEN JONES, SONS OF CONFEDERATE VETERANS: Not --

BANFIELD: Does it mean something different?

JONES: No, no. No, it doesn't. Nothing has changed. In fact, I think if anything "The Dukes of Hazzard" is more popular than ever. It's shown in 50 countries around the world. It's beloved -- it has been beloved by several generations and we see an awful lot of young people now who are just falling in love with the show. And as you pointed out, there's -- and "good old boy" is just a good person, a good- hearted person. It's not about color. It's not about race. It's not about any of that. That show did have -- prominently featured a Confederate battle flag in a very positive context in a place where there was no racism.

BANFIELD: Yes. Congressman, I want to ask you about that.

JONES: And where the good guys -- excuse me, the good guys always won.

BANFIELD: Sorry.

JONES: I know the world's not like that, but you must understand that that flag has been seen and is now seen in also in positive context. It's been used by racists, by horrible people such as this man who killed those people in Charleston. Terrible thing. (INAUDIBLE) has used the American flag. You know, the Klan burns the Christian cross and their flag is the American flag. Different context. In the context of the Klan and these racist, hateful people, I can understand how people could be upset about that.

BANFIELD: So, can I ask you --

JONES: But for many of us it just simply represents my ancestry, my DNA.

BANFIELD: OK. All right. So I guess in that vein, the pride that you feel for your ancestry, for your DNA, for the good old boys who, indeed, as you say, may be good, where does that pride supersede other peoples pain?

JONES: My pride is in the south. My pride is in the south, which is your multiracial region. My pride is in the great progress that the south has made. I was in the civil rights movement, black and white together. We went to jail. We marched. I fought the Klan. I got sucker punched, shot at, went to jail. But we changed America by changing the south and turning it from Jim Crow and segregation into the fastest growing region in America with the fastest-growing economy and with more black elected officials than anywhere else in the country. And with blacks moving to -- back to the south in record numbers after the great migration north years ago, coming back to the south because that's where family and home is, where they say there's a better quality of life and better race relations.

So I've seen that happen and I'm very, very proud of that. As I can't change who my ancestors were. They did what they did in their time and they thought they were right. And slavery is a much more complex thing than just what happened 150 years ago. Much more complicated. And we know that our nation's economy was built on slavery. Read "The Rest Has Never Been Told" by Edward Baptist or "Complicity" by the "Hartford Courant" and you will understand that slavery and racism is not the southern sin, but the American sin, the national sin. And I think a lot of people like to project all of that on to us and our symbol --

[12:20:18] BANFIELD: So, let me ask you --

JONES: Our -- the symbol that my -- all of my ancestors fought for the south. That's not going to change. I've seen the flag used in a positive context. And I, for one, as a Sons of Confederate Veterans --

DON LEMON, ANCHOR, CNN'S "CNN TONIGHT": The south lost.

JONES: Am very ready to sit down at Dr. King's table of brotherhood and talk about this with any of my brothers of any color and sis -- and sisters.

BANFIELD: So to that point, the sons -- the Sons of Confederate Veterans lost a very prominent battle just in the last few days at the Supreme Court of the United States over the right to display the Confederate flag on a license plate in Texas --

JONES: In Texas, yes.

BANFIELD: Which might show you that -- which might show you the direction the population is going in its sensitivity to -- well, let me finish, let me finish -- in its sensitivity to this. And I ask you this because on television last night, it was on Don Lemon's program, in fact, I saw one of your compatriots likening taking down the Confederate flag to cultural genocide. And immediately I was sort of -- I got a lump in my throat because I thought cultural genocide? My God, there was real genocide. I mean real genocide that went on is in the south and black people died in the hundreds of thousands.

JONES: Well, hundreds of thousands during slavery, you mean?

BANFIELD: That's exactly what I mean. And to them, that's what the flag means.

JONES: Well, everybody -- everybody died -- oh, slavery was a terrible thing, but it existed in every state in the union and all of the colonies and it existed under the American flag from 1776 until 1856. And we remember from Lincoln's first inaugural address where he says, let's keep it in perpetuity. I guarantee its constitutionality. So it's a much more complicated issue.

Slavery -- slavery was hard. It existed everywhere. And it was a terrible thing. We're not here talking about slavery, we're talking about the fact that our people -- they weren't defending slavery. Most of them had no slaves. The vast majority. They saw it as a country being invaded. They thought they had the right to secede, the constitutional right. Where did it say that they didn't? They made that move. They were invaded. They fought very hard for four years as valiantly as any army ever in the history -- in the annals of military history.

They were our people. They came home. The south was destroyed, devastated with nothing. Six million white people, four million newly freed slaves with nothing. Lincoln said -- when Lincoln was asked, what are those slaves going do? And he said, well, they'll just have to root, hog, or die. Well, that was true of everybody. The south had been destroyed. And through all of that, through all of those resentments, through all of that segregation and white supremacy and all of that nonsense, we've come through that.

BANFIELD: Well, it's not nonsense. I'm going to jump in there.

JONES: We do not mean to offend anybody. We're not to offend anybody. BANFIELD: The white supremacy is not nonsense, sir. Sir, I'm sorry.

JONES: Ma'am.

BANFIELD: White supremacy is not nonsense, it just -- just not even a week ago led to the mortal combat murders of nine innocent church goers. So I'm going to disagree with you there.

I have to cut that short. I appreciate you taking the time --

JONES: Wait a minute. That -- that is not -- I just said it's not a southern sin. White supremacy is a sickness.

BANFIELD: But it's not nonsense.

JONES: Racism is a sickness that goes on all over the world. This man doesn't represent us. Yes, it was a horrible thing.

BANFIELD: Yes, but white supremacy is not a nonsense, it's real.

JONES: No one things it was not a terrible, horrible thing, Ashleigh. It was a -- evil. It was worse than that. I don't think we ought to be making major historic decisions --

BANFIELD: Yes.

JONES: And characterizing millions of -- 70 million people who --

BANFIELD: Well, maybe these are the times.

JONES: Excuse me, let me finish, who 70 million people descended from the Confederacy and y'all can't define us by the act of a demented hater. It just -- it doesn't connect. And we certainly shouldn't be --

BANFIELD: I'm not defining you, congressman.

JONES: Pardon me.

BANFIELD: I'm not defining you, congressman. I think evolution of thinking among the people, all the people, might be doing the defining, not me.

JONES: Excuse me, are you saying that my --

BANFIELD: I have to cut it there and I do -- I've got to --

JONES: My thinking isn't evolving? Is that what you're saying?

BANFIELD: Nope.

JONES: Thank you.

BANFIELD: I'm saying the definition didn't come from me. I've got to go. I so appreciate you taking the time. I've got to fit in a break. A quick two-shot if I can with my colleague, Don Lemon, who has been standing by very patiently. I want you to take -- LEMON: The south will rise again!

BANFIELD: Ten deep breaths.

LEMON: Please. You don't even -- I mean, listen, you don't even need me after this.

BANFIELD: I know.

LEMON: I mean what he said speaks for itself. I don't have -- really have to say anything. I'll let -- you want to hear from me? I'll give it to you, but I don't really -- just let him say his thing.

BANFIELD: I have questions for you. I do have questions for you. Don's going to come back with me and we're going to -- we're going to digest what we just heard. Back after this.

(COMMERCIAL BREAK)

[12:28:17] BANFIELD: That is a live picture of the flag flying high on the state grounds in Columbia, South Carolina. Not higher than the capital, but higher than the folks who are protesting underneath it, asking for it to come down once and for all. First, from the top of the capital, now from the grounds completely.

I want to bring in my colleague Don Lemon, host of "CNN Tonight."

So you were --

LEMON: I was very patient. Are you proud of me?

BANFIELD: You were amazing.

LEMON: I (INAUDIBLE) because I don't hold my tongue.

BANFIELD: Because I know that some of that -- I mean that is really painful to hear things like, you know, this nonsense of white supremacy when white supremacy was exactly what led to the murders of nine people.

LEMON: I do thing, though, not to defend him, I do think he was saying that it was nonsense that people felt that way. I thought that's what he was trying to say, although he didn't do it eloquently.

Listen, for this man, you know, I know he is -- how do I put this? He's living in the past. For him to -- what he's saying is, you know, in the south, all we did was sit around and drink mint juleps and sit on the porch and whatever. A lot of people did do that. My people didn't because my people were serving people on the porch the mint juleps and whatever.

BANFIELD: The mint juleps and the iced tea. Yes.

LEMON: My people were also being lynched and hanged and beaten and couldn't get jobs, couldn't get educations, couldn't get -- walk on the sidewalks if a white person was walking by. BANFIELD: And this is post-slavery.

LEMON: All of those things. And this is post-slavery.

BANFIELD: Yes.

LEMON: And all of that has to do with the history of the south, which means the Confederacy, which means one reason -- one reason -- everyone says it's not the only reason they were fighting the civil war. That was a major reason that the civil war was being fought. And --

BANFIELD: You can't hide that.

LEMON: You cannot hide that. and if he -- he said, I'm proud of the south. Well, the south is part of America. The south lost. So the flag that lost should come down. There is no northern flag that hangs on any capital in any north. We all have one flag, and that's the American flag.

[12:30:08] BANFIELD: I asked the congressman, when does your pride supersede other people's pain?