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Sixteen States Are Suing President Trump Over National Emergency Declaration; Roger Stone to Appear in Court Thursday to Discuss Recent Instagram Posting of Judge; Justice Ruth Bader Ginsburg Back in Supreme Court for Hearing Today; Patrick Frazee Hearing Today in Possible Murder of Kelsey Berreth; Former Suspects in Jussie Smollett Case Released From Jail. Aired 10:30-11a ET

Aired February 19, 2019 - 10:30   ET


[10:32:48] ANNOUNCER: This is CNN, the most trusted name in news.

JIM SCIUTTO, CNN ANCHOR, NEWSROOM: Right now, 16 states are suing the Trump administration to stop the president from using a national emergency declaration to reallocate congressional money so that he can fund his desired border wall.

Joining me now is the attorney general for one of those states, Phil Weiser of Colorado.

Thanks very much for taking the time with us this morning.

PHIL WEISER (D), ATTORNEY GENERAL, COLORADO: Jim, it's great to be with you.

SCIUTTO: So, Mr. Weiser, one argument you will hear from the president -- but even from lawyers we've spoken to on this here (ph) -- is that under the National Emergency Act, the law of this land since 1976, some -- some 59 emergency declarations have been made by presidents, many of them still in effect today.

What in your case is the difference between this emergency declaration and those previous ones?

WEISER: There's a big difference here, Jim. Here is a case of the president asking Congress for the authority to do something, Congress said no, and the president said, "I'm going to do it myself."

Our Constitution has a limited set of powers for the president. Congress has the power of the purse. In Article I, it says if you want to appropriate money, that's up to Congress.

Congress said, "We're not appropriating the money." If the president can get away with this end run (ph), it undermines the very foundation of separation of powers.

SCIUTTO: And that is part of your argument, right? Is that Congress has not just been silent on this money for the wall. Congress had opportunities to spend it. And no, they didn't -- they didn't pass it. That's part of the legal argument. WEISER: That's in (ph) essence of the case. This is a case where

Congress was asked to do something and said expressly --


WEISER: -- "No, we're not going to it." When Congress tells the president, "You don't have authority to do it, we don't want you to do this," the president's authority to act unilaterally is really at a low point.

SCIUTTO: Let me ask you this as well. Because the president, in that announcement in the Rose Garden on Friday, he made some comments that caught people's attention because he seemed to say, "Well, I didn't have to do this. This was a choice. Just gets in there quicker," et cetera.

In your case, are you using the president's -- or attempting to use the president's public comments against him, and do they have legal relevance?

[10:35:02] WEISER: There are a range of reasons to believe this isn't the type of emergency that this law was intended to address. One of them, of course, is this discussion's been going on for a while and the indicators of concern -- people coming over the border -- that's actually at a less concerning point now than it's been in quite some time. The president's comments, himself, obviously are part of this.

This is not the sort of situation that the Emergencies Act was intended to address. If it's allowed to act here and the president's given the authority, that just undermines the whole checks and balances that we depend on. This is going to be an important decision, maybe one of the most important ones for presidential power since the steel seizures case under President Harry Truman.

SCIUTTO: So you have 16 state's attorneys general who are bringing this case. Did any Republican attorney general or states or state legislators, lawmakers, did you discuss with any of them, joining this case? Because at this point it is largely a Democratic effort.

WEISER: What I can say is, I've talked to Republicans here in Colorado who have said, "We need to protect principle over party. This is a moment when our basic constitutional design is at risk. If we don't protect separation of powers now and we allow it to be eroded, the challenge is, 'What comes next?'"

I haven't talked to A.G.s from other states who have thought about this who might be saying, "Can I do this?" So I can't speak for them. I can just speak for me.

We here in Colorado, we're concerned about separation of powers, about the rule of law and protecting Colorado because this action would divert money that should be going here to Colorado to military installations, to build an illegal border wall.

SCIUTTO: Will you be seeking an immediate injunction? In other words, to stop the effects of this emergency declaration while the courts decide the case? And how long do you expect it -- this process to take?

WEISER: It's hard to handicap how long these processes take. The norm is, as you note, to seek a preliminary injunction. That, of course, becomes a matter that could be appealed.

This case will probably end up being decided by the U.S. Supreme Court. I had the chance to work for a couple Supreme Court justices, Byron White and Ruth Bader Ginsburg, both of whom were very concerned about separation of powers issues. I believe the Supreme Court's going to be concerned about this action.

SCIUTTO: We'll see. Some of those conservative justices have a more liberal view, it seems -- or a broad-ranging view of executive action, but that will be quite a court -- a court case. Phil Weiser, thanks very much for walking us through it.

WEISER: It's great to be here, Jim.

SCIUTTO: This news just in to CNN. Judge Amy Berman Jackson has ordered Roger Stone to appear at a hearing on Thursday related to his Instagram post yesterday.

We reported those a short time ago, a photo posted then deleted from Stone's own Instagram account showed the Judge Jackson next to crosshairs, mimicking the scope of a rifle. The same photo was later posted without the crosshairs, then deleted as well.

Regardless, Stone taking a shot, there, about whether Jackson is the right person to hear this case, accusing her of being partisan. Stone will now be required to explain why the judge should not change or revoke the immediate contact order -- gag order, rather -- and his conditions of release. He's going to have to answer to a judge for those posts.

Also, news this morning. Back on the bench, Judge Ruth Bader Ginsburg is hearing arguments for the first time since her surgery in December. We're going to be live at the Supreme Court.


[10:43:26] SCIUTTO: She is officially back now. Justice Ruth Bader Ginsburg, RBG, back on the bench for the first time since undergoing surgery in December. CNN Supreme Court reporter Ariane de Vogue was inside the courtroom as she made her return.

Ariane, tell us what her return was like and did you hear her speak up from the bench?

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: You're right, Jim, she is back on the bench for the first time since she announced she'd undergone that cancer surgery. She came out, she sat -- took her regular seat between Chief Justice John Roberts, Justice Samuel Alito. She smiled slightly to the crowd. She was wearing one of her famous neck collars, or jabots, that had pearls on it.

And as she usually does, she asked one of the first questions. And then she also asked a follow-up question. That was in this patent case that the court is hearing.

Keep in mind, this cancer that she had surgery for in December was found very early. Back in November, she tripped and fell in her office and she fractured her ribs. And as a part of treating that, the hospital found the cancer. So it was found really early, Jim.

But in January, she did miss two weeks of oral arguments in trying to recover from that. But now she is back on the bench and ready to go for a heady spring term.

SCIUTTO: This is going to be a busy term, and they're already making some decisions now, are they not, about cases they're going to hear?

DE VOGUE: It is going to be a busy term. Already they're going to hear a religious liberty case, a case on partisan gerrymandering. They're also going to hear, this term, whether the Trump administration can add that citizenship question to the 2020 census.

And just today, a little earlier today, the court agreed to take up a case about the Clean Water Act for next term. So she's going to be very busy between now and the end of June, Jim.

[10:45:00] SCIUTTO: All decisions with enormous implications. Ariane de Vogue at the court, thanks very much.

DE VOGUE: Thank you.

SCIUTTO: Other news this morning -- and it's happening as we go along -- Trump ally Roger Stone has to answer for some very controversial Instagram posts. The judge just called him to appear in court. Expect something of a scolding. We're going to have an update just after this.


SCIUTTO: This just in to CNN, the judge Amy Berman Jackson has ordered Roger Stone to appear at a hearing on Thursday over posts on social media that he made yesterday, threatening posts.

[10:50:00] A photo posted and then deleted from Stone's Instagram account showed the judge next to crosshairs. You can see them there, in the upper left-hand corner, mimicking, it seemed, the scope of a rifle.

That same photo was later posted without the crosshairs, the photo then deleted as well. Bottom line, Roger Stone certainly has some explaining to do. Evan Perez joins me now.

I mean, one question is, how seriously do judges -- but also law enforcement -- take -- because beyond the photo, it was what he said in the post that was -- was considered disturbing.

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Right. Roger Stone is not happy that this judge, Amy Berman Jackson, has his case. He calls her an Obama appointee -- she was -- but he essentially is trying to attack the legitimacy of this judge. And of course, that's just something that the court system will not

tolerate. Certainly, law enforcement will not tolerate threats against a judge.

But, look, Judge Jackson has a bit of a dilemma here. If you can see what she's -- what she's doing here. She put a gag order -- severe gag order -- in the Manafort case after Kevin Downing, the lawyer for Manafort, addressed the media on the steps of the courthouse just on the first day.

She's been a lot more lenient with Roger Stone. And I think part of the reason is that she expected that if you gag Roger Stone, if you make him essentially a martyr, then he's just going to violate the gag and then she's going to have to throw him in jail.

So I think she was trying to figure out a way -- an intermediate step to handle this personality that is Roger Stone.

SCIUTTO: So she's going to bring him before the court --


PEREZ: Right.

SCIUTTO: -- you might expect a little bit of a scolding here, but --

PEREZ: And she says -- yes. I mean, she's talking about -- in her order, she's basically saying, "Come to me and explain to me why I shouldn't put --

SCIUTTO: There you go.

PEREZ: -- "a more severe restriction."

SCIUTTO: So that's the question. Restriction -- could he be held in contempt? Could he be sent to jail for something like this, or is it more --

PEREZ: It all depends. I mean --

SCIUTTO: -- greater (ph) restrictions (ph)?

PEREZ: -- she could -- she could punish him by rescinding his bail order. I mean, there is a lot of different places you could go.

I expect that she's going to go short of that. I think he has done the right thing by apologizing. But she is going to be -- she's going to deal with him very severely as a result of this.

SCIUTTO: So his lawyers have to know this is a bad idea.

PEREZ: I think that -- and I think you can see that from their own filing, which -- I took it to mean, "We told our client to apologize and if he didn't we were going to step away from this case."

SCIUTTO: Right. PEREZ: And I think that's part of what's happening here. But, you

know, Jim -- and you and I have been talking about this -- Roger Stone -- for Roger Stone, this is his oxygen. Us talking about him --


PEREZ: -- this is his oxygen. And so depending on what the judge does here, I mean, you know, he could be -- we could see a lot less of him, which may not be a bad thing.

SCIUTTO: And it's interesting to see his lawyers -- because his lawyers have their own futures to think about, too --

PEREZ: Yes, absolutely.

SCIUTTO: -- right? So they can't get wrapped up in --


PEREZ: Right. They're legitimate lawyers.

SCIUTTO: -- disrespecting (ph) -- yes. Evan Perez, thanks very much.

A secret set of guidelines for Catholic priests who vowed to be celibate and yet father children during the priesthood. Details on the stunning admission from the Vatican. That's next.


[10:57:23] SCIUTTO: Welcome back. There will be a hearing next hour for a Colorado man accused of killing his fiancee. Prosecutors looking to present evidence, hoping to continue building a murder case against Patrick Frazee.

Berreth's parents filed a wrongful death lawsuit against Frazee, saying that a custody dispute was likely, quote, "a motive to kill Kelsey." Prosecutors believe that Kelsey Berreth died sometime after she disappeared on Thanksgiving Day. Her body has never been recovered, but her fiance is currently charged in her death.

Chicago police say that two brothers who were arrested in connection with an alleged attack on "Empire" star Jussie Smollett are no longer suspects. Abel and Ola Osundairo were released on Friday after new evidence emerged.

In a joint statement to WBBM, the brothers said, quote, "We are not racist. We are not homophobic and we are not anti-Trump. We were born and raised in Chicago and are American citizens."

Jussie Smollett claims that he was attacked last month by two men yelling, he said, "racial and homophobic slurs." He said this to ABC News about the alleged attack.


JUSSIE SMOLLETT, ACTOR, "EMPIRE": Who the (INAUDIBLE) make something like this up or add something to it or -- or whatever it may be. I can't -- I can't even -- I'm an advocate.


SCIUTTO: To be clear now, police investigating this as something very different, an orchestrated attack. Our Ryan Young -- he's in Chicago, he's been following this closely.

This is not headed in a good direction, Ryan.

RYAN YOUNG, CNN NATIONAL CORRESPONDENT: No, it sure doesn't look that way. Police have really been able to break this down. We're told the two brothers are actually working with detectives at this point.

Just to bring everybody up to speed, we're told 12 detectives have been working this case since the very beginning. Of course, the actor tells them that he went to go to Subway to get something to eat. On the way back, he was attacked, he was assaulted. People screamed names at him.

What we do know is that rope, the noose that was found, they have financial records to prove that one of the brothers actually bought the rope. So a lot of questions here.

And of course, detectives want to talk to the actor again. So far, it doesn't look like he's coming into have a conversation with them just yet.

SCIUTTO: Is he facing the possibility of charges here? Because if he manufactured this, I mean, that I assume is criminal -- criminally chargeable.

YOUNG: Yes. That is the great question here. And I can tell you this. Here's the thing. The brothers have obviously told the detectives a story here in terms of how this all came together.

And we saw on Saturday, the lawyers for them actually put out a statement about what Jussie believes that happened, that he actually paid them to be personal trainers.

[11:00:05] So the next 24 hours or so, Jim, we'll see some more information come out.