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Legal View with Ashleigh Banfield

National High for Trump; Wing is Part of MH-370; Same-Sex Marriage Licenses. Aired 12-12:30p ET

Aired September 03, 2015 - 12:00   ET

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

[12:00:00] JOHN BERMAN, CNN ANCHOR: That's it for us "AT THIS HOUR." LEGAL VIEW with Ashleigh Banfield starts right now.

ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone, I'm Ashleigh Banfield, and welcome to LEGAL VIEW.

I've got breaking news for you. It may not sound breaking, but Donald Trump's support is surging, and that is officially breaking because just minutes ago a Monmouth University poll came out showing Trump with a commanding 30 percent support. That is up four points from before the first debate. That's nearly one-third of Republicans in this country supporting Donald Trump.

Ben Carson is now in second place with 18 percent. And that is very high for him. Followed by Jeb Bush and Senator Ted Cruz tying for the third spot with 8 percent. And Senator Marco Rubio with 5 percent.

I want to go straight out to CNN's chief political correspondent Dana Bash, who's outside of Trump Tower in New York City.

You know, moments ago I was about to come to you to ask you about a story that's been flying around cable news and everywhere else regarding this, you know, loyalty pledge, but now I need to switch gears lightning fast to talk about these numbers. Trump, 30, Carson 18. These are personal bests for both of them.

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: They absolutely are. You know, we have been talking earlier this week about polls, specifically the first caucus state of Iowa which shows Trump and Carson pretty much tied. But you're absolutely right, personal best for Trump on a national level, the highest he's ever been, and also for Carson. And I think that is incredibly significant, that it's not necessarily just in the first caucus state for Carson, a place where voters tend to gravitate more towards conservative candidates, which Carson is, but on a national level.

The other thing that you mentioned, Ashleigh, which is important to note and underscore, is Jeb Bush not doing well. you know, he's still third in place but he's also in single digits, which for somebody like Jeb Bush who has the enormous name recognition, who has - was supposed to be kind of the establishment guy, if you will, and all of the money that he has from the donors who were backing him for that reason, that's not so good and it might help explain why Jeb Bush is fighting back so hard against Donald Trump this week. BANFIELD: Yes, I don't even think we've had time to put these into a

nice, fancy graphic to put up for our viewers, so I'm just going to do the prose and you're going to have to react to this for me, Dana. And that is that the poll suggests that the voters' opinion of Donald Trump have also ticked up in the past four weeks.

BASH: Yes.

BANFIELD: Now his favorability is at 59 percent, compared to 29 percent unfavorability. Let's just take those other graphics down so I don't confuse anybody. Dana, we had the other - the other poll up. But 59 percent favorable for Donald Trump to 29 percent unfavorable. And, by the way, 59 is up from 52 favorable just four weeks ago. It seems like there's just nothing that this man can do to upset anyone, at least those people who are answering the phones for these polling questions.

BASH: You're right. It is, again, one more piece of evidence that he is counter to every convention that we who have covered politics for a very long time have come to know and kind of abide by. And, look, I mean just the fact that I'm here. Why am I here? I'm here because Donald Trump is, we understand from sources, expected to sign a pledge that he will be a Republican. This has never happened before, Ashleigh. And the reason is a lot of - based on what you just alluded to, that the RNC chair is flying here to New York to make sure that he signs the pledge, to convince him, to seal the deal, if you will.

Again, when it's never happened before because they realize that this is a very topsy-turvy election cycle and, most importantly, that Donald Trump is so unpredictable. He says he's a Republican now, but he does have a lot of support and he might have staying power and if he changes his mind down the road, then that could very much hurt the Republican Party.

BANFIELD: OK. So while we have that pledge up on the screen, it's just disappeared, but it's sort of fun parlor games to actually look at it and then imagine for a moment Donald Trump tearing it into two pieces somewhere down the road or maybe four, six, or eight pieces because, you know, headlines are headlines and that makes great TV. The reality is, as it is not binding, what are the odds -

BASH: Yes.

BANFIELD: And what is it the talk throughout all the different campaigns who, by the way, I heard you report last night, all plan to sign it, that he might sign it because that makes a great headline today, but down the road it doesn't matter what he does with it?

BASH: It doesn't. It's not legally binding. I mean you've talked to lawyers, I'm sure. I have spoken to just a couple of lawyers privately inside several campaigns who kind of, you know, know this stuff. There's no reason legally he has to abide by this, assuming that this meeting this afternoon goes well and that - and that he signs the pledge.

[12:05:11] However, there is what is legal and then what is practical, politically and otherwise. And if he continues to run for president as a Republican now, at least, he's going to have a lot of pressure on him to stay a Republican in the near future.

Let's just say down the road he doesn't get the nominee and he decides to be an independent, you could have a scenario where you have South Carolina, for example, which has specific party law on the books saying that you have to promise to be a Republican. That legislature is conservative. They could come up with some plan potentially to keep a Donald Trump off the ballot on a national level in a general election. So there are all kinds of things that could make it hard for Donald Trump practically to run as an independent if he broke this. But I think, again, a lot of this is kind of hypothetical because, you know, we'll see what happens after this meeting. We do expect him to do this and we expect him to say, once and for all, I am a Republican.

He is getting a lot of calls, I'm told, Ashleigh, in his campaign office from his supporters saying, don't do this. Keep the option open to be an independent. We like your independence better than your party affiliation.

BANFIELD: By the way, the weird part of all of this - and, by the - I - you are so lucky to have this job because I can just imagine what you're thinking of in terms of trying to plan for your reporting down the road after 2:00. But I can just see Donald Trump saying, hey, Reince, I've got your polling right here. Take your, you know, take your - your pledge and stick it.

But I say that because the irony of all of this, Dana, is that if he does go ahead and sign this pledge today, this really takes a lot of wind out of the sails of Jeb Bush, doesn't it? Because isn't Jeb's ammo right now, Donald Trump is not a true conservative, a true Republican? But if he signs this, it makes another splashy headline over every paper and all the cable shows.

BASH: Yes, it certainly - it makes Jeb Bush's argument harder. But, you know, just because he is an actual Republican and he is pledging to back the Republican nominee, whomever he or she is, and to not run as an independent, it doesn't mean that he is subscribing to conservative principles the way a Jeb Bush or other conservatives want him to. And that's the point of Jeb Bush's attacks. They want to make the point that, he says he's conservative, but look what he wants to do. He wants to raise taxes. He wants to do other things that are simply not conservative like you and me. So he might be a Republican, let's just say, fast forward, hypothetically he becomes president, he might be a Republican president, but he's not going to do the things that you conservative voters want him to do. And that's really the point that Jeb Bush is trying to make and trying to beat him with this week.

BANFIELD: I can hear a lot of independents out there sighing and cooing and very excited, while others are sort of gobsmacked. You can say that any way you want.

Dana Bash, let us know what - I love this story today. It's crazy. I mean there you are at Trump Tower where the - didn't the reality show contestants come out of that door, right? I think that's the same place, yes.

BASH: Yes. I mean I usually - yes, this is - this is definitely a typical place for me on the campaign trail, no question.

BANFIELD: I know.

BASH: Just on Fifth Avenue.

BANFIELD: It makes your job so great. Well, do some shopping after your shift is over. Thank you, Dana Bash.

BASH: OK.

BANFIELD: And, by the way, make sure you stay with CNN because Donald Trump is expected, as Dana said, to speak at 2:00 p.m. Eastern Time. Oh, to be a fly on the wall of that Reince Priebus meeting. CNN's going to bring you that live.

There is one thing I have not been able to say a lot of since the story of MH-370 broke so long ago, and I've not been able to use the word "certainty." And now I can because the prosecutor who is looking into the case of that flaperon is using that word "certain." The story's next.

(COMMERCIAL BREAK)

[12:12:15] BANFIELD: More breaking news for you now and something we have never had before in the long and grueling investigation into the Malaysia Airlines Flight 370 disappearance, and that is this, certainty. Within the past hour, a French prosecutor has declared that it's, quote, "possible to say with certainty that the flaperon discovered on Reunion Island July 29th corresponds to the one on MH370," end quote.

I want to bring in CNN's Erin McLaughlin live in London.

So how are they making this definitive declaration, Erin?

ERIN MCLAUGHLIN, CNN CORRESPONDENT: Hi, Ashleigh.

Well, when investigators received the flaperon in France on August 5th, they used a tool called an endoscope, which is a small tool with a light attached to it to search inside the flaperon. And inside the flaperon they found three numbers that they were able to say could potentially be linked to a Spanish subcontractor responsible for helping to make Boeing 777 flaperons in Spain.

Now that subcontractor by the name of Airbus Defense and Space had initially told CNN, a source close to the investigation, say that that subcontractor had initially said that they had insufficient records to be able to link directly those numbers to MH-370. But now, according to this statement from the French prosecutor, they sent a team to Spain and today they were able to link one of the three numbers to MH- 370. So now the French prosecutor saying that with - it is with certainty that that flaperon is from MH-370. BANFIELD: Erin McLaughlin reporting for us live. I don't know that

that's going to bring a lot of solace for those who have been awaiting on this official word, but at least there is word.

Erin, thank you.

Now to a case so contentious the judge is getting a federal security escort to get him from his home to his work, the courthouse. A Kentucky clerk who refuses to issue same-sex marriage licenses based on what she says are her religious grounds could be held in contempt of court. And the courtroom is packed to capacity. What will that judge do? Breaking news out of Kentucky, next.

(COMMERCIAL BREAK)

[12:18:02] BANFIELD: So here is how high the passions are running in Kentucky today over an issue that was settled back in June by the Supreme Court of the United States no less. This morning, the federal judge who is deciding whether to hold a county clerk in contempt for her refusal to issue marriage licenses, well, that judge got a security escort to the courthouse. Rowan County Clerk Kim Davis is not - isn't the only official locally who is defying the high court's recognition of same-sex marriage as a constitutional right. Legal in all 50 states. But she, Kim, just happens to be the one who went before a judge last hour and is in a hearing in part because of a confrontation that you may have seen online or on TV on Tuesday.

And before I play it, I want to call your attention to something, a question about Davis' own marital history. We're going to get to that in a minute. But listen.

(BEGIN VIDEO CLIP)

KIM DAVIS, CLERK: I'm not being disrespectful to you.

UNIDENTIFIED MALE: You absolutely have been.

UNIDENTIFIED MALE: You absolutely are. You're treating us like second- class citizens is what you're doing.

DAVIS: No. No.

UNIDENTIFIED MALE: You're telling us that we don't deserve the same rights that you do, that you have, that you've enjoyed your entire life.

DAVIS: I'm saying that if you -

UNIDENTIFIED MALE: Would you do this to an interracial couple?

DAVIS: A man and a woman, no.

UNIDENTIFIED MALE: How many times have you been married, Kim?

DAVIS: I just want you all to know that we are not issuing marriage licenses today pending - UNIDENTIFIED MALE: Why?

UNIDENTIFIED FEMALE: (INAUDIBLE) court.

DAVIS: Um -

UNIDENTIFIED MALE: What appeal is left?

DAVIS: Pending the appeal in the 6th circuit.

UNIDENTIFIED MALE: These - these are not -

DAVIS: The appeal stay has been denied.

UNIDENTIFIED MALE: What's the appeal in the sixth circuit? Right, the induction is the order that you're supposed to issue marriage licenses.

DAVIS: So - and we're not issuing marriage licenses today.

UNIDENTIFIED MALE: The Supreme Court denied your say.

DAVIS: We are not issuing marriage licenses today. So I would -

UNIDENTIFIED MALE: Based on what?

DAVIS: I would ask you all to go ahead and -

UNIDENTIFIED MALE: Why are you not issuing marriage licenses today?

DAVIS: Because I'm not.

UNIDENTIFIED MALE: Why?

UNIDENTIFIED MALE: Under whose authority?

UNIDENTIFIED MALE: Who's authority?

UNIDENTIFIED MALE: Are you not - under whose authority?

DAVIS: Under God's authority.

UNIDENTIFIED MALE: Did your lawyers tell you -

UNIDENTIFIED MALE: Did God tell to you do this? Did God tell you to treat us like this?

UNIDENTIFIED MALE: Did your lawyers - I don't believe in God.

DAVIS: I've asked you all to leave. You are interrupting (INAUDIBLE) -

UNIDENTIFIED MALE: You can call the police if you want us to leave.

UNIDENTIFIED FEMALE: This is a public office. It's not your business, it's a public office.

UNIDENTIFIED MALE: You can call the police. I pay your salary.

DAVIS: (INAUDIBLE) the public can't get in here.

[12:20:00] UNIDENTIFIED MALE: I pay your salary! I pay you to discriminate against me right now, that's what I'm paying for. That's what I'm paying for. I'm paying for this memory with my partner that I love that I've been with for 17 years. What's the longest you've been with someone, that you've been married to someone?

DAVIS: I'm asking you to leave.

UNIDENTIFIED MALE: I'm not leaving.

DAVIS: OK, you all can -

UNIDENTIFIED MALE: I'm not leaving.

DAVIS: If you can just back away.

UNIDENTIFIED MALE: I'm not leaving.

DAVIS: You all are more than welcome to stay, just step away from the counter.

UNIDENTIFIED MALE: I can't help that the press is here. I -

UNIDENTIFIED MALE: No, we're not leaving until we have a license.

DAVIS: Just push back away from the counter.

UNIDENTIFIED MALE: We're not leaving.

(END VIDEO CLIP)

BANFIELD: Kim Davis' critics are pointing out that before she found religion, she had been married four times and divorced three times. Now, through her lawyers, she says, and I quote, "I never imagined a day like this would come where I would be asked to violate a central teaching of scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God's definition of marriage with my name affixed to the certificate would violate my conscience. It is not a light issue for me. It is a heaven or hell decision."

I'm joined by CNN legal analyst Paul Callan in New York and I'm also joined by one of the prospective spouses from that very heated exchange with the Rowan County clerk, Kim Davis, that happened on Tuesday. His name is David Moore.

David, first to you before I talk to Paul about the legal issues. Effectively did you just leave yet again without the certificate that the law now says you are entitled to?

DAVID MOORE, REFUSED MARRIAGE LICENSE BY ROWAN CO. CLERK: Yes. We came in and we were denied again. That was the third time we went in in person. And they said no. They really had no reason to say no at this point. They've appealed to the Supreme Court. The Supreme Court denied their stay. We decided the night before that we were going to go in and try because the Supreme Court said, no, there's no more appeals. So, yes, no marriage license.

BANFIELD: So, Paul Callan, come in on this, if you will. The district judge actually in the ruling said this, quote, "the state is not asking her," Kim, "to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in religious activities. Her religious convictions cannot excuse her from performing the duties she took an oath to perform." The question to you is, does it come down to whether she is unable to do this or unwilling to do this? And is there any difference effectively when it comes to what this judge is going to do in this hearing today?

PAUL CALLAN, CNN LEGAL ANALYST: Well, if she were unable to do something because, say, she was physically unable to do it, she had a disability or she was ill and she couldn't do the work involved in issuing a certificate, that would be one thing. But this is a willful decision that she's made that her religious beliefs, whatever they may be, supersede the law and Constitution of the United States. And it seems to me there's only one thing a judge can do and that is to order her to either comply with the law or be held in contempt of court.

If you want to take a job working for the government, then you have to be willing to enforce the law. You can't become a Navy SEAL if you're a pacifist. And if, you know, if you want to work for GM, you can't be opposed to Chevrolets. She happens to have a job which requires handing out marriage certificates to those who lawfully have a right to those certificates. She's in clear violation of the law. And I think you'll see the courts back the law rather than her particular religious belief.

BANFIELD: David, I think some critics have said, look, that county is being difficult. There are other counties where you could get that certificate but - or a license, but you've chosen not to do that. Why?

MOORE: I refuse to go to another county and be treated like a second- class citizen. That's like telling someone, go use a different bathroom or go use a different service. You know, we're going to give these services out to certain people in the community but not others based on our bigotry. I'm not - I refuse to accept that. I'm not going to go to another county. If we go to another county, if we say this is OK, it will become OK everywhere.

BANFIELD: Yes.

MOORE: It will trickle down county to county.

BANFIELD: So, Paul, just quickly on the legal end of this, she's an elected official. This is not just someone you can hire and fire at will. There's a lot of intricacies where the legislature might have to get involved for an impeachment. There might have to be a criminal case, a misdemeanor case. But where do you see this going in terms of - the very next step, the contempt step?

CALLAN: Well, there is precedent and looking back to Brown vs. The board of Education, when segregation was ordered ended in school systems across the United States, there were many elected officials, you know, I think some governors, George Wallace standing and blocking students from attending the University of Alabama. The courts came in and they said, if you continue in that behavior, we're going to hold you in contempt. And, if necessary, we'll send in federal troops, which is what happened with school segregation cases.

Now, I don't know that this will go to that extent, but certainly I would - I would see a federal court holding her in contempt or fining her or handing down another sanction to make sure that David and everybody else in this country has a right to a marriage certificate, that they have the right to get one.

[12:25:14] BANFIELD: Well, David Moore and Paul Callan, I appreciate your insight on this and we're going to watch this because clearly that hearing is not over yet and there's news to be made in the next few moments. Thank you to you both.

CALLAN: Thank you.

MOORE: Thank you.

BANFIELD: There's also some breaking news from the NFL, from Deflategate. That four-game suspension for Tom Brady, no longer there, overturned, erased. We're going to break down the judge's decision. We've just received a statement as well from the NFL commissioner, Roger Goodell. Guess what? Might not be over, folks. We'll explain.

(COMMERCIAL BREAK)

BANFIELD: We've got breaking news again on CNN, and this one New England Patriot Tom Brady will not have to sit out those four games as has been ordered by the NFL. A judge today instead said let him play and overturned that four-game suspension. Remember, he'd been caught up in that so-called Deflategate scandal and accused of using under inflated footballs which gives that quarterback at least an advantage.

And this just in, reaction from the NFL Commissioner Roger Goodell. He says, "we are grateful to Judge Berman for hearing this matter, but respectfully we disagree with today's decision. We will appeal today's ruling in order to uphold the collectively bargained responsibility to protect the integrity of the game."

[12:30:04] And just moments ago, the New England Patriots tweeted out this picture of Brady doing a fist pump. Rachel Nichols, got to get you in here, from CNN Sports.