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Arraignment Begins for Kevin Spacey on Assault Charge; Trump Threatens to Declare National Emergency to Build Wall. Aired 11-11:30a ET

Aired January 7, 2019 - 11:00   ET


[11:00:00] ALAN JACKSON, ATTORNEY FOR KEVIN SPACEY: All I'm asking -- all I'm asking is this is data that we believe not only potentially exculpatory but likely exculpatory and I don't want to see that data deleted or destroyed inadvertently or manipulated. I don't think it is a burden at all on the commonwealth nor on the two individuals named in the motion indeed and the complaining witness to simply say I'm ordering you not to destroy anything. So that Mr. Jackson, Miss Polaro (ph), the commonwealth can litigate in front of the court at some point whether or not there's exculpatory information that leads up to today. In other words, all I'm asking for is to put a bubble around that data so it doesn't get destroyed. I'm not saying I get it yet. I just don't want it destroyed yet.

UNIDENTIFIED JUDGE: Well, further response?

UNIDENTIFIED PROSECUTOR: We can only control, Judge, at this point what is in the care and custody and control of the commonwealth.


UNIDENTIFIED PROSECUTOR: As far as information contained within the specific service providers of these individual cell phone carriers, that is different. We have no control over that, Judge. We would suggest as far as the preservation goes, to the individuals directly or to the providers, that it be limited at this point to the 7th and 8th until more information could be provided as to why it might likely be exculpatory versus a phishing expedition.

UNIDENTIFIED JUDGE: I haven't seen any of the police reports so I don't know what -- except for the affidavit, I don't know what information that you base this request upon. I do think that the 7th and 8th certainly would be appropriate to time span to preserve the evidence but I understand even if the motion is allowed it can be modified down the road and can be tightened up and so I'm inclined to allow the motion. I don't know if I'll do it up from the 7th or 8th. Maybe six-months-worth of preservation but other than that I'm going to require that everything but preserved.

Go ahead.

JACKSON: At this point is satisfaction. Six months of preservation is good to accommodate the commonwealth on that.

UNIDENTIFIED JUDGE: So from July 7th -- JACKSON: July 7th and 8th of 2016, and six months thereafter.

UNIDENTIFIED JUDGE: The motion will be allowed and requirement that the cell phones and I think the cloud-based -- and then some passwords, et cetera, that all be preserved. As I say, that is subject to further modification one way or the other depending upon what is discovered during the course of this matter.

JACKSON: Thank you.

UNIDENTIFIED JUDGE: We have a further date for the gents and ladies that work --

JACKSON: We haven't discussed one yet. Confer with counsel


JACKSON: -- I think we could come up with a date.


Sir, you could be seated. You don't need to continue to stand. Thank you. Thanks.

UNIDENTIFIED PROSECUTOR: Your Honor, may I consult my cell phone real quick.


UNIDENTIFIED PROSECUTOR: It has my calendar on it, I apologize.


UNIDENTIFIED ATTORNEY: Your Honor, Mr. Jackson is admitted Prohackvichi (ph). And I'm local counsel. Are you going to require my appearance or someone from my office at all proceedings?

UNIDENTIFIED JUDGE: Are you in already? I know you came in so that he could enter the Prohackvichi (ph).

UNIDENTIFIED ATTORNEY: I do have a notice of appearance on file. And Mr. Jackson is filing one today as well.

UNIDENTIFIED JUDGE: So your appearance is already in.

UNIDENTIFIED ATTORNEY: My appearance is in.

UNIDENTIFIED JUDGE: We'll leave it there. Thank you.

JACKSON: Your Honor, if it pleased court, we have discussed a date of the fourth of March, which is a Monday. I understand that is most convenient for the court.

[11:05:07] UNIDENTIFIED JUDGE: Yes, that's right. That is a -- jury week is in February so March 4th would probably work. JACKSON: And counsel and I also discussed off the record and I would

ask for the court's guidance on this, he has no objection and the commonwealth has no objection to Mr. Spacey not making that appearance. I could make that appearance on his behalf with Miss Polaro (ph) if need be without him having to be there on that date.

UNIDENTIFIED JUDGE: That is fine. His appearance could be waived but his requirement is that he should be available if he needs to be contacted.

JACKSON: Absolutely.

UNIDENTIFIED JUDGE: But his appearance could be waived. Sure.

JACKSON: Thank you.


UNIDENTIFIED ATTORNEY: And could we schedule that, Your Honor, for 11:00 a.m. again?

UNIDENTIFIED JUDGE: Sure. We all set? Anything additional, folks.


UNIDENTIFIED JUDGE: All right. Thank you all for your help.

I'll step off and then the camera people could break down their equipment and those connected with the case can depart. Thank you.

UNIDENTIFIED FEMALE: OK, this case has been continued to March 4, 2019, for pretrial hearing, 11:00 a.m. The defendant's appearance has been waived.

Sir, you should report to the Probation Department before you leave the building so you could sign the documents for stay away and no contact with the victim.

JACKSON: Thank you.


KATE BOLDUAN, CNN ANCHOR: You're watching it there with us. The breaking news, Kevin Spacey, the actor, long time actor, Kevin Spacey, in court in Nantucket, the island of Nantucket, Massachusetts, to face charges, a charge of felony indecent assault and battery, possibly facing prison time in relation to an allegation or a charge he assaulted a minor in the summer of 2016. A lot playing out there and a lot of questions now coming out of what we just saw.

Let's get over to CNN Jean Casarez and outside of the courtroom and following this from the beginning.

Jean, what we thought would happen going in is we learned there would be cameras he was expected to enter a not guilty plea. Did we miss that? JEAN CASAREZ, CNN CORRESPONDENT: I personally didn't hear it.

According to the law in Massachusetts, he can or cannot. So I never thought that it was a conclusive thing. But I do know he signed an affidavit, Kevin Spacey, did on Christmas Eve saying I plead not guilty. Not literally but figuratively at that point.

But what we heard in the courtroom was an interesting legal argument aggressively brought on by the defense because when the alleged assault occurred and the accuser said that it happened for about three minutes near the piano bar at this local restaurant, he was a busboy off work excited so meet Kevin Spacey and with him for about an hour that night, midnight until 1:00 in the morning or a little after at tables, at the bar area. A lot of drinking was going on. But what we just heard in the courtroom was that when the alleged assault was happening, there was texting going on between the accuser and his girlfriend and the defense wants to know what those texts were. Now the accuser said to detectives that his girlfriend didn't believe him as he was saying that he was being assaulted or touched without his consent by Kevin Spacey, she didn't believe him. So he took a SnapChat video that lasts about one second and it shows basically a picture of a hand on some clothes. We haven't seen it. That is how it was described. But the defense is saying this could help us, these texts and we want to know what they are and we want everything preserved between the accuser and his girlfriend and not home for the alleged date but six months after that. That is really one of headlines I think from the hearing today, the arraignment. And now the next pretrial hearing is beginning of March.

BOLDUAN: March 4th, 11:00 a.m., the pretrial hearing set, just now we heard in the courtroom.

Jean, thank you very much.

We'll learn more from the courtroom.

Joining me now is former federal prosecutor, CNN legal analyst, Elie Honig, and CNN chief media correspondent, host of "RELIABLE SOURCES," Brian Stelter.

Thanks for being here.

Elie, jumping off what Jean was just talking about, what did you make of what you saw on there?

ELIE HONIG, CNN LEGAL ANALYST: So it was a fairly standard proceeding in the judge advised Spacey of the charges against him and he's pled not guilty. I noticed the same thing that jean did which is the dispute about the text. The lawyer said I want those texts preserved and the season is what jean speculated, what was the victim saying as this happened and saying to his girlfriend and really in his mind. The prosecutor's response surprised me. Your response as a prosecutor should be, of course, we'll preserve that. We have a duty as a prosecutor to preserve any evidence whether it is helpful for the prosecution or helpful for the defendant. The term we use is brady evidence. You have an obligation to do that. And the fact that the prosecutor was a little bit mealy mouth and said, well, Judge, they are just phishing around.


[11:10:22] BOLDUAN: Like an undue burden to ask them to keep stuff like that.

HONIG: Yes. That gives me a little bit of pause about what is in those texts as the prosecutor, is he a little bit nervous. But when you are a prosecutor, your job is not to win but to do justice. And if you have texts, good, bad or indifferent, they need to be preserved and go over to the defense.

BOLDUAN: One of the things we noted as we watched, Brian, Kevin Spacey facing a felony charge that could bring serious prison time but it's on Nantucket Island. It's --


BOLDUAN: It is a very strange place this time of the year. The strangest way that something very serious is playing out. And you can see that also in how Kevin Spacey had asked the judge to -- his team had argued he didn't want to appear and the reason being is the circus, if you will, that would be coming, the media circus and he said my presence will amplify the publicity in connection with this case.

STELTER: But the circus comes because he is such a well-known star not just in the United States but all around the world. You think about Kevin Spacey, his stature for decades, and most recently on Netflix on "House of Cards" seen around the world. And his world started to be challenged about 15 months ago when actor, Anthony Wrap (ph), accused him of assault and we published a story about numerous production staffers on "House of Cards" accusing Spacey of harassment and in one case assault. These came out in the public domain in October of 2017. Now this is a different case altogether but it's an example of how in this "Me Too" movement, "Me Too" era, most of the cases are not argued in court. Most do not end up in court. It is rare to see one of the high-profile men actually have to show up in court. Mostly, it is in the court of public opinion. You lose your job and fired and embarrassed and ashamed and people move on. But in this case we may see this play out in a courtroom. That's rare. We've seen Harvey Weinstein in court, and now Kevin Spacey, and those are the exceptions to the rule in this "Me Too" era.

BOLDUAN: And we're looking at the outside of the courthouse where we expect Kevin Spacey and his attorneys to leave. We'll see what happens when they do. We'll watch that --


STELTER: He wants to play, to speak in some way, did he that over the holidays. Came out with a strange --

(CROSSTALK) BOLDUAN: The strangest way on Christmas Eve he comes out with the -- with this video that he posts in character as Frank Underwood. It was almost moments after the charges had been filed against him.


HONIG: It is hard for him to complain about we'll draw undue attention and publicity if I appear in court when he puts out this crazy YouTube video drawing attention to this.


BOLDUAN: What do you think about what Brian said, this is the exception? People who have allegations they have faced and in many cases not criminal charges and we've been talking about, he's facing a felony right now. Do you think this goes to trial?

HONIG: I do. I think it will go to trial. I think first of all, we know the way it works in Massachusetts is this is already been pre- judged. There's a judge called a magistrate half a level below the judge who reviewed the evidence and decided there's enough to go forward and they have done those students and as a law student could you do them in Massachusetts. Sometimes judges throw them out and then some say you could proceed. The judge said there's enough to proceed. If you are the prosecutor strategically, you cannot give Kevin Spacey a soft deal and let him plead to some sort of meaningless little misdemeanor offense. You've taken a stand and you need to back it. And Kevin Spacey, look, I certainly cannot get inside of this guy's head but I cannot see him taking a guilty plea to an indecent assault and battery to not quite a minor but an 18-year-old but we could be headed for trial.

BOLDUAN: Because what we've learned about what the charge could bring, it is not only potential prison time, but it is also required to register as a sex offender. Talk about what that means for a public a person.

STELTER: And what kind of fall that is for him. That YouTube video over the holidays suggested that he won some sort of comeback and his career is not over and is not finished and has more to say and the consequences of this felony conviction if they go to that, would affect his career.

HONIG: He can't be on set with people underage if --


BOLDUAN: What did you think about the restrictions or lack thereof and the prosecutors were saying stay away from the family.

HONIG: That is fairly common. You always want that. The defense didn't contest that.

BOLDUAN: Elie, what does it mean when he's facing a felony indecent assault and battery, what do you need to prove that? HONIG: You need to prove -- the key issue is consent. I think the

actual touching --


[11:15:05] BOLDUAN: The allegation is that he put his hands down this 18-year-old boy's pants. And one thing that seems to be agreed upon is that he was 18 years old at the time and his mother said that he said he was -- told Kevin Spacey he was 23 when they met.

HONIG: This will all turn on consent. Did the individual, the victim, consent to this. Now it is complicated by a couple of factors. The celebrity is a complication. Could you argue -- you could argue he wasn't willing to say no to this powerful person. Or you could argue that -- I'm sure the defense will argue he wanted to be with this powerful person. The alcohol intake --


BOLDUAN: Let's take a listen just to see --


UNIDENTIFIED REPORTER: Kevin, do you have any --

UNIDENTIFIED REPORTER: What really happened?

UNIDENTIFIED REPORTER: What are you feeling today Mr. Spacey? Mr. Spacey?


BOLDUAN: And likely under the advice of counsel, Kevin Spacey did not say anything as he was walking to the car.

Continue, Elie.

HONIG: Smart this time not to say anything. If only he listened before he made the video. Alcohol issue is complicated because it cuts both way, right? The prosecutor's argument is you had a victim somewhat impaired and more easily taken advantage of it and Spacey will argue he drank and lied to get those drinks underage and perhaps made him more eager to be with Kevin Spacey. So that is going to be a complicator at trial as well.

STELTER: And when we talk about the role of celebrity here, it is really about power in this case. It is about power, a powerful a-list actor allegedly taking advantage of that power and that celebrity and that fame and using it to take advantage of this younger kid -- this younger person.

BOLDUAN: And one thing that we -- so we've heard from seeing Kevin Spacey and we have not heard from, at all, the accuser in this. We have heard from his mother, who is the person who spoke out in 2017. Do you think moving forward on March 4th the pretrial hearing and the judge said Kevin Spacey is not required to be in the courtroom for that one. Going forward, will this accuser be required to show up?

HONIG: Yes. The accuser will be expected to testify at trial. You cannot make this case without the accuser testifying publicly at the trial. Before then, if I'm the prosecutor in this case, I'm telling the accuser, look, I can't order you what to do as an accuser, as a victim. But I could advise you, stay quiet. You don't help anybody by speaking out. When the trial comes, yes, that accuser will be on the stand in that courtroom, that quaint little courtroom we just saw. Dealing with victims in sexual assault cases, it is complicated and delicate and as a prosecutor your first priority is to protect the victim and make sure they don't get further vilified. It is complicated. Exponentially, we have a celebrity aspect.

BOLDUAN: Complicated is where it begins and gets more complicates from there.

Brian, thank you so much.

Elie, thank you so much.

HONIG: Thank you.

BOLDUAN: We have so much more to come from this. On March 4th at 11:00 a.m. for the next hearing for Kevin Spacey facing assaulting a minor.

Coming up for us, the shutdown showdown has many government workers wondering when they will see the next paycheck or when they'll be back on the job. And now Trump is threatening to declare a national emergency to get the money to build a border wall. Details on that ahead.

Plus, the president's shifting strategy on Syria. Are we back to the beginning, or are we somewhere in between? After John Bolton seems to contradict his boss, President Trump claims nothing has changed. Your head should be spinning. We'll try to unspin it in. In the end, the question is, what does this mean for the 2000 U.S. troops fighting in Syria right now?

We'll be right back.


[11:23:06] BOLDUAN: Welcome to week three of the partial government shutdown, 17 days in with no end in sight. The government shutdown has not only put 800,000 government workers in limbo it's also now compromising air safety. A National Pilots Association is warning the president in a letter that the shutdown in their words, quote, unquote, "is adversely affecting U.S. air space." So where do things stand? Lawmakers and the White House, despite meetings over the weekend, they continue to dig in over funding for a border wall. Or -- or whatever you want to call it. And now Trump has a new way to get around the standoff. Declare a national emergency.

(BEGIN VIDEO CLIP) DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I may declare a national emergency depending on what will happen over the next few days. But I think we'll have serious talks come Monday, Tuesday, Wednesday.


BOLDUAN: CNN's Sarah Westwood is at the White House with more.

Sarah, now the White House is saying it doesn't need to be a wall, calling it a steel barrier or fence. Whatever you want to call it, what are you hearing right now?

SARAH WESTWOOD, CNN WHITE HOUSE REPORTER: Well, Kate, the White House appears to be hoping that changing the name of the border wall will somehow convince Democrats to support it. But, if anything, the name games are just injecting more new confusion into a process already by a lack of clarity by the administration of what the president would support in terms of a spending deal. But, at the moment, President Trump appears dug in behind the $5.7 billion figure that was included in what the White House described as an official justification for those funding requests distributed to congressional aides at last two meeting held over the weekend. Negotiating on behalf of the administration was Vice President Mike Pence and secretary of Homeland Security, Kirstjen Nielsen, and Jared Kushner. But sources on both sides of the aisle say not much progress was made in those meetings. They emerged no close to an agreement to reopen the government. And now they are at a fundamental impasse with Democrats telling White House officials over the weekend there would be no progress on talks until the government is reopened. And Trump is saying the government is not reopening until he sees progress on talks.

[11:25:21] Now with that as the backdrop, now Trump is threatening to declare a national emergency to get funding for the border wall if he is unable to do it legislatively and that would be a move met with a legal challenge. The White House floating some misleading statistics on border security as they try to keep the pressure up on Democrats to do wall funding legislatively. But it appears there's no deal on the horizon to reopen the government at the moment -- Kate?

BOLDUAN: Something has got to give at some point. I've said this for three weeks but something has to give.

Thank you so much, Sarah. It is good to see you.

Joining me right now, and maybe we could find a place where that will give, Democratic Congressman Adam Smith, of Washington, the chairman of the House Armed Services Committee.

Mr. Chairman, thank you for coming in.

REP. ADAM SMITH, (D-WA), CHAIR, HOUSE ARMED SERVICES COMMTTEE: Thanks for the chance. I appreciate it.

BOLDUAN: Thank you. So the president it appears was watching your interview yesterday when

you talked to George Stephanopoulos, because he was tweeting about it, and in this tweet, he says you are backing him up in this threat to declare a national emergency to build the border wall. What do you say to that, Mr. Chairman?

SMITH: I realize we live in a world where truth no longer matters and you say what you want to, all I said, I think it would be huge mistake to declare a national emergency. There's no national emergency. And that is what underlines this entire issue. We have spent an enormous amount of money on border security and built a good wall over the portion of the border long before President Trump got into office. President Trump is artificially creating this emergency to keep up his anti-immigrant, xenophobic borderline racist "their coming for us from the border." We're spending money on border security. What doesn't make sense is to build a wall even the president doesn't seem to know why he wants it except that he made the promise. And he promised that Mexico would pay for it so where are we having this fight in the first place? But this is the key issue. There's no justification at all on border security grounds for a wall. Everyone said the wall won't help at all.

BOLDUAN: In terms of --


SMITH: Now when you talk about declaring an emergency, the president of the United States has an enormous amount of power. One of the reasons we need to be careful who we elect president. The president can declare a national emergency and take money out of the Department of Defense and there's no clear legal history for what a national emergency means. Now he would be challenged in court because there clearly is no emergency. There's no reason for this on border security grounds. But they asked, can he do it? Yes, he can. It would be wrong. It would be horrible policy and I'm totally and completely against it but from a legal standpoint he could do it. And then taking the money from the Department of Defense. And keep in mind the $5 billion that we're talking about in the shutdown crisis, the cost of this wall, undefined as it is, is estimated to be between $20 billion and $30 billion. That is what he would take out of the Department of Defense. So can he do it?

BOLDUAN: Well, again --

SMITH: Yes, but it would be a terrible idea.

BOLDUAN: -- totally unclear what -- again, totally unclear what he would take.

SMITH: Right.

BOLDUAN: And totally unclear if he'll make good on this threat. As we know the president has made many a threat that he has not made good on. But when you say that it would almost immediately be challenged in court, if he would make this move, would you spearhead that lawsuit? SMITH: Absolutely. But, look, if I'm going to be honest here, and I

realize honesty is not well rewarded in politics these days, but look back at the history. The Japanese were interned because President Roosevelt declared an emergency and did it. And the courts upheld it. We don't have a long history in this country of the courts standing up to executive power. So it is dangerous. It is very dangerous. I'm not saying it is a good idea. But those of us who oppose the law, those of us who think that the president is demagoguing this issue, wasting money -- look, the crisis on the border is asylum seekers. They are not trying to sneak in. They are turning themselves in.


SMITH: It is a terrible idea, but he could do it.

BOLDUAN: Does the administration now calling it a steel barrier or saying -- or even a fence, does that make any difference to you?

SMITH: No. It makes it clear the president has no idea what he's talking about. Look, understand what this is. Way back when, the president gave a speech and started attacking immigrants and started talking about the wall, and he got a good response from the conservative base. That is why he decided he wanted a wall.


BOLDUAN: But you are not against -- I've heard you say you are not against a wall as part of a border security --

SMITH: Well I am --


BOLDUAN: -- policy.

SMITH: I am against the wall as part of a border security and Mick Mulvaney said it best before working for Trump and when he said this is a childish idea to think a wall will protect us. What has been done, walls have been built along portions of the border. The portions that make sense.


SMITH: We've made massive investments. We have tripled the number of border security agents.