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Smollett Defiant Amid Allegations He Staged Attack; Judge Bars Roger Stone from Speaking Publicly about Criminal Case; NC Board Declares New Election in Contested House Race; Michael Cohen to Testify Before Three Committees. Aired 6-6:29a ET

Aired February 22, 2019 - 06:00   ET

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

(BEGIN VIDEOTAPE)

EDDIE JOHNSON, CHICAGO POLICE SUPERINTENDENT: Jussie Smollett took advantage of racism to promote his career.

[05:59:30] UNIDENTIFIED MALE: Let the process work. He is presumed innocent.

UNIDENTIFIED MALE: This is the fall of an icon.

UNIDENTIFIED MALE: The level of betrayal, if this is true, is so deep.

UNIDENTIFIED FEMALE: A federal judge imposing a strict gag order on former Trump advisor Roger Stone.

UNIDENTIFIED MALE: She excoriated him. She said, "This isn't baseball. You don't get three strikes."

UNIDENTIFIED MALE: He is a hair away from ending up in jail. The judge isn't going to tolerate it.

(END VIDEOTAPE)

ANNOUNCER: This is NEW DAY with Alisyn Camerota and John Berman.

ALISYN CAMEROTA, CNN ANCHOR: We want to welcome our viewers in the United States and around the world. This is NEW DAY. It is February 22, 6 a.m. here in New York. Happy Friday.

JOHN BERMAN, CNN ANCHOR: Thank you.

CAMEROTA: It's again another busy morning, because breaking overnight, embattled actor Jussie Smollett went to the set of his show "Empire" late last night.

CNN has learned that Smollett called a meeting with the cast and crew, and one person who was at that meeting says, to the surprise of everyone, Smollett defiantly stuck to his story, proclaiming his innocence.

The star is accused by police of filing a false police report after allegedly orchestrating an attack against himself. Authorities say Smollett paid two brothers $3,500 to stage this assault in order to advance his own career.

Chicago's police superintendent was outraged in a press conference, and he calls on Smollett to apologize to the city.

BERMAN: And a feat never seen before in politics or nature: Roger Stone silenced. A judge issued a gag order on the president's longtime political advisor after he posted a photo on Instagram, showing that judge's face in what appeared to be crosshairs behind her head. We have new details this morning of Stone's bizarre Contradictory and unexpected testimony inside the courtroom. How he managed to turn a situation from bad to worse.

Also new this morning, it's not over yet. Forget the 2020 election, 2018 is still going open. Overwhelming evidence of election fraud at a North Carolina congressional race has now led to an order to do it all over again, complete redo. How will this work? And the dramatic father/son face-off that led to this decision.

We are busy, to say the least. Let's start with CNN's Ryan Young with the latest on the Jussie Smollett case -- Ryan.

RYAN NOBLES, CNN CORRESPONDENT: Yes, John, this is playing out almost like a TV show. Well, maybe a reality show.

But in any case, Jussie went to work yesterday. Now we're told he's on hold for today's shoot.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE: Make room.

NOBLES (voice-over): "Empire" actor Jussie Smollett digging in after being charged with reporting a fake assault to police.

JOHNSON: He was dissatisfied with his salary, so he concocted a story about being attacked.

NOBLES: Smollett's legal team insisting he maintains his innocence writing in a defiant statement, "Today we witnessed an organized law enforcement spectacle. The presumption of innocence was trampled upon at the expense of Mr. Smollett."

A source tells CNN that Smollett was on the set to film at the "Empire" studio Thursday afternoon and called a meeting with cast and crew, who were said to be expecting him to come clean. But after apologizing for any embarrassment caused by the incident, the source says Smollett asked the show team for their support and, again, insisted that he's innocent.

JUSSIE SMOLLETT, ACTOR: I am now one of those people who have been attacked.

NOBLES: The visit coming after Chicago police laid out their case against the actor, saying Smollett paid the Osundairo brothers $3,500 to stage the attack, and prosecutors say that police have a copy of the check to prove it. UNIDENTIFIED FEMALE: He wanted Abel to attack him but not hurt him

too badly and to give him a chance to appear to fight back. Defendant Smollett also included that he wanted Ola to place a rope around his neck, pour gasoline on him and yell, "This is MAGA country."

YOUNG: Police say Smollett gave the brothers $100 in cash to buy supplies they later bought at this beauty supply store and that the three men even scoped out a location for the attack.

UNIDENTIFIED FEMALE: Smollett directed the brothers' attention towards a surveillance camera on the corner, which he believed would capture the incident.

YOUNG: The injuries seen in this photo, allegedly self-inflicted. Police say Smollett came up with the plan after this threatening letter he allegedly sent to himself failed to garner significant attention.

JOHNSON: Jussie Smollett took advantage of the pain and anger of racism to promote his career.

(END VIDEOTAPE)

YOUNG: John, the superintendent of police was strong with his words and, obviously, you can understand this after more than a thousand hours were wasted sort of in investigating this case. We also know the actor had $100,000 bond, and he has to be back in court in three weeks.

BERMAN: All right. Ryan Young covering this story for us in Chicago, 24 hours a day. Ryan, thank you.

Joining us now, CNN legal analyst Joey Jackson, a criminal defense attorney.

And Joey, I've got to say, the big news overnight is that Jussie Smollett is maintaining his innocence. His lawyers are and Smollett is on the cast of "Empire." What's the defense strategy here?

JOEY JACKSON, CNN LEGAL ANALYST: Well, listen, you know, sometimes the defense -- there's two things you can really do. The first thing is to do a mea culpa, to come out, to go to the people who have embraced him so well, who love him, who support him and say, "You know what? This just was not so." It not only worked from a public relations perspective, in my view; it could work from a court of law. Right? The court likes contrition; it likes remorse. It likes people when they own up to things.

But it seems as though, to this point, the other defense is a scorched-earth defense. And that scorched-earth defense could get him in trouble.

Here's why I say that. And of course, the facts are not yet all known. We're hearing things bit by bit. Everyone's entitled to the presumption of innocence. I get it. But what happens is, is that many people perceive a defense attorney's

job, you got to get your client off; you got to get your client off. No, your job is to mitigate, oftentimes, the pain that your client could endure.

[06:05:07] And the fear is, is that if you're going down one path where the evidence seems to be so Contradictory, you can hurt him. Right?

Now, we're hearing evidence about phone calls to the brothers an hour before the attack, a half an hour after the attack. They have the check, apparently, that he paid. The brothers are talking. You have the surveillance video. And so to maintain your innocence in the face of such devastating evidence could ultimately compromise Jussie Smollett in the end.

BERMAN: Now, we haven't seen the whole case. We've only seen what the police and authorities have told us. From what we have heard from them, if it is all true, what is the most damaging evidence?

JACKSON: Well, it's all damaging. Remember that when you empanel a jury, if it goes that far. We're not there yet. Maybe there will be a mea culpa. Maybe he'll come out in the event that he didn't do this and apologize and say, "I hurt a lot of people. This is why I did it. I'm really, you know, so sorry."

But you look at the evidence in total. This -- I mean, you could point to so many damning pieces. First, the actual story itself.

When you go to a court and talk to a jury, you always tell the jury about common sense and your good judgment. Does the story make sense? Two a.m., you know, dead of night. You're on the phone with your manager. You have this noose around your neck. They've got this receipt that suggests that, you know what? It was purchased. You've got the surveillance video. You've got phone records.

All of it in total would suggest that it's damning. It didn't happen the way he said that it happened and that he would be guilty of filing a false --

BERMAN: A lot of people were paying attention to the police superintendent, Eddie Johnson, yesterday and the dramatic press conference he gave.

Well, the defense, Jussie Smollett's defense, put out a statement yesterday that said a spectacle, this spectacle has no place in the legal system. Was it unusual what Chicago police did yesterday?

JACKSON: I don't think it was unusual. I think these are police officers who were hurt personally. And, look, the fact is, is that when you have a thousand man-hours that are out there, people hours, when you have detectives who are investigating, you've got 12 detectives going and scouring all -- everything, and their indication is it's just not so, it represents, really, a black mark on that police department. It represents a mark upon the city. And I think that they take it in a way that -- you know, it's not appropriate, particularly in this level of discourse where just -- we're in tough times.

BERMAN: We are in tough times. We're going to talk a lot more about how this maintaining of innocence will affect the political and social discussion going forward. Joey Jackson, thanks very much.

JACKSON: Thank you, John.

BERMAN: Alisyn.

CAMEROTA: All right, John. Longtime Trump associate Roger Stone uncharacteristically quiet after a dramatic day in court. The judge overseeing his criminal case ordered him to stop talking about his it or else.

CNN's Sara Murray has more. What happened, Sara?

SARA MURRAY, CNN POLITICS CORRESPONDENT: Well, Roger Stone said he was sorry. He said he was kicking himself for his own stupidity. And the judge, she said she wasn't buying it.

(BEGIN VIDEOTAPE)

MURRAY (voice-over): President Trump's former adviser, Roger Stone, leaving court Thursday after federal Judge Amy Berman Jackson placed him under a strict gag order for posting this picture of her on Instagram, appearing to show the crosshairs of a gun behind her head.

Stone insisting he is heartfully sorry but repeatedly Contradicting his own explanations for the post. First, saying an unnamed volunteer selected the picture, then that he picked it out himself. Stone initially describing the crosshairs as the logo of an organization, then a Celtic symbol.

Jackson rejecting Stone's explanation, saying, "There's nothing ambiguous about crosshairs," noting "Mr. Stone could not even keep his story straight on the stand much less from one day to another." The judge also questioning Stone's sincerity, saying his "apology rings hollow" after he's repeatedly defended the post, despite removing it from Instagram and signing his lawyer's letter to the judge apologizing.

ROGER STONE, LONGTIME ADVISOR TO DONALD TRUMP: I threatened no one. I intended to threaten no one. I never disrespected the judge or the court.

BROWN: Judge Jackson stating, "I have serious doubts about whether you've learned any lesson at all."

Last month, Stone was arrested as part of a special counsel's Russia investigation and charged with seven felony counts of obstruction, making false statements and witness tampering.

Judge Jackson warning Stone that if he violates her order, she'll have him thrown in jail, noting, "This is not baseball. There will not be a third chance."

(END VIDEOTAPE)

MURRAY: Roger Stone is still free to talk publicly about literally anything else, just not his case -- Alisyn.

CAMEROTA: All right, Sara. Thank you very much.

Joining us to discuss this is Laura Coates, former federal prosecutor and CNN legal analyst.

Laura, he put crosshairs, OK, over the judge in his case's head. This is beyond online harassment. This is an overt threat. Why didn't she revoke his bond and send him to jail?

LAURA COATES, CNN LEGAL ANALYST: Well, unlike Roger Stone, she didn't make it about herself. She tried to make it about the underlying case, which shows you her objectivity, which is the antithesis, essentially, of what Roger Stone has been claiming all this time.

I think she was trying to balance the First Amendment and also balance the idea of him being able to publicly speak about her and other cases. But also about the idea of it was a threat.

But I think by not making it about herself, she really just -- just made sure that people understood, and Roger Stone in particular, "This is not about me. This is about making threats. This is about impeding justice, and this is a problem."

CAMEROTA: Well, I think that's laudable. OK. But about sending a message -- I mean, what about sending a message to other people that you can't threaten a judge? I mean, he claimed that this -- he thought this was a Celtic cross, which she basically suggested was laughable.

COATES: And it is laughable. And I think you're right, that it is laudable. Although it's not the course that many other judges would have taken. Many would have said, "Listen, you're already here for lying, for witness tampering, trying to influence a prosecution in some form or fashion and investigation, and now you're threatening the court." Many would have thrown him in jail based on that alone. In addition to the fact that, just six days ago, there was a contemplated gag order that gave him quite a lecture in being able to talk about the case at all.

I think, however, her ultimate conclusion was that, frankly, he may mess up again. And I'm sure she expects that he will do so and now will have more than enough basis and grounding to throw him in jail.

CAMEROTA: In fact, she said today, "I give you a second chance, but this is not baseball. There will be no third chance."

So now what is it? He can't breathe a word of this. He can't say anything about this case or what?

COATES: And remember, before, six days ago, it was about you can't say anything within the certain feet of the courthouse. Now it's "You can't say anything, because you have proven that, if I give you an inch, you'll take a mile and probably to your own detriment."

Remember, the gag order is not simply because the judge doesn't prefer to have publicity. It's oftentimes to help the defendant, as well, to save himself from himself.

If he can't speak about the case, he does not provide the prosecution with more evidence they can use against him. It's almost a way of telling a defendant, "Look, you've got this right not to testify, so don't do it in the court of public opinion either."

On the other hand, however, the fact that he has this order shows that the court is trying to potentially seat an impartial jury; and the more he talks, the more he tries to have a deep-state offensive against this case and a conspiracy theory, then the less likely it is that they can actually seat an impartial jury. And that's also a problem for justice.

CAMEROTA: Oh my gosh. Laura Coates, thank you very much for explaining all of this to us -- John.

BERMAN: All right. A stunning turn of events in North Carolina. The elections board decided to toss the 2018 results and hold a new vote in the state's Ninth Congressional District amid allegations of rampant election fraud.

CNN's Dianne Gallagher live in Raleigh with these new details -- Dianne.

DIANNE GALLAGHER, CNN CORRESPONDENT: Yes, John, stunning might be an understatement here. We were actually starting to plan our hotel rooms for next week due to some of the testimony, and then suddenly, the candidate himself got on the stand, said that he'd had some difficulty in the morning recalling things and maybe had given some incorrect answers to questions. And then, well, he read this statement. Take a listen.

(BEGIN VIDEO CLIP)

MARK HARRIS (R), NORTH CAROLINA CONGRESSIONAL CANDIDATE: Neither I or any of the leadership of my campaign were aware of or condoned the improper activities that have been testified to in this hearing. Through the testimony I've listened to over the past three days, I believe a new election should be called.

(END VIDEO CLIP)

GALLAGHER: Now, the whole reason why this all went to hearing is because Harris wanted to be seated, because he felt that he had won.

But the testimony over this past week detailed explicitly very obvious election fraud, including workers who admitted to doing it on the stand. The board, though, before they voted, did indicate that it was Harris's own son, assistant U.S. attorney John Harris, his testimony basically stating that he had warned his father beforehand about this operative, that helped push their decision. It was a 5-0 bipartisan decision. It was celebrated by Harris's

Democratic opponent in that 2018 election, Dan McCready, saying that this is what the people deserve.

Now look, the election board is going to set a new primary and a new general election in the coming weeks, John. The people of North Carolina are going to get to redo 2018 in the Ninth District.

BERMAN: Not over yet. Dianne Gallagher, thank you very much.

Want to bring in CNN senior political analyst John Avlon.

John, we've heard so much from the president and others about voter fraud. This is election fraud. This is a campaign, and those working for a campaign harvesting and farming absentee ballots. It's stunning.

JOHN AVLON, CNN SENIOR POLITICAL ANALYST: It's stunning. It's about as blatant as you can get. The North Carolina GOP and the candidate tried to deny it, but the testimony has been just crystal-clear, including his own son saying months before. He said, "This guy is a bad deal. Don't get involved." He was known, this guy Dowless, for for this kind of absentee ballot fraud. And so this is on full display for everyone to see.

BERMAN: What we do not know, if Mark Harris, the Republican candidate, will run again, now that there will be a new election there. Is it guaranteed?

People are looking at us, saying, "Now the Democrats will get one more victory. They may win this race now." Is that a guarantee?

AVLON: Not at all. Look, this district is drawn to be friendly for Republicans. It has been in Republicans' hands since the mid-1960s.

The fact that the Democrat was so close was a function of kind of that blue wave midterm election dynamic. So Republicans are really hoping that they can -- they've got an edge in what will presumably be a lower turnout special election. So no guarantees about the outcome.

BERMAN: Especially if they put a new cleaner candidate in in the Republican race.

All right. The president, what's his response been to this, given his deep concern over the last few years about what he calls voter fraud? I'm sure we've heard of him. Surely he's made statements about this?

AVLON: What's that we hear? Is that crickets? Nothing. Tumbleweeds. There's been no comment, because the president, who's warned against voter fraud, demonized that, really hasn't dealt with the fact that you've got corruption on the Republican side of the aisle here. He's going to try to pass it on.

BERMAN: He said nothing about this?

AVLON: I have not seen anything. The president has weighed in on this issue.

BERMAN: All right. John Avlon, thank you very, very much -- Alisyn.

CAMEROTA: All right, John. Michael Cohen will testify before three congressional committees next week, but he's already spending time on Capitol Hill. What's he doing there? That's next.

(COMMERCIAL BREAK)

CAMEROTA: Michael Cohen made a surprise visit to Capitol Hill yesterday. He spent several hours inside the Senate Intelligence Committee's secure spaces ahead of his upcoming closed-door testimony before that panel on Tuesday. Then on Wednesday, he is set to testify publicly. And then again behind closed doors on Thursday. So what will he tell lawmakers?

[06:20:03] Let's bring in Anne Milgram, former New Jersey attorney general. And Joe Lockhart. He was the White House press secretary for President Clinton.

OK, guys, if you believe Michael Cohen's attorney, Lanny Davis, this is going to be a blockbuster, OK? So listen who to what Lanny Davis says Michael Cohen is going to reveal.

(BEGIN VIDEO CLIP)

LANNY DAVIS, ATTORNEY FOR MICHAEL COHEN: You're going to hear impersonal, frontline experiences of memories and incidents and conduct and comments that Donald Trump said over that ten-year time period behind closed door that, to me, when I first heard Michael tell me all this, even as much as I knew about Trump that was negative, was chilling.

(END VIDEO CLIP)

CAMEROTA: And is Michael Cohen publicly going to be able to say chilling details about his former boss?

ANNE MILGRAM, CNN LEGAL ANALYST: I think yes. One of the things we've seen is that he's had these broad conclusory statements saying, you know, "President Trump, he directed me do it. President Trump directed me to pay this money. And I was in meetings." He also talked about the meeting with David Pecker at AMI and Michael Cohen together. But we've had no details.

So imagine a conversation, if the questioning is good, where they literally could take us piece by piece through "When did you talk to Donald Trump? What did he say? How many conversations did you have? Who else was in the room? What was the president trying to do? Why was he trying to do it?" We haven't had any of that detail.

And so I think we know from the high-level conclusions it's essentially the Southern District has accused the president of committing an election fraud crime; and now we're going to hear Michael Cohen talk us through what the inside was like. I think it could be explosive. BERMAN: That's the legal side of it. I think we can't overlook the

political side of this, too, Joe. And we're underselling the political spectacle here. If I had told you a year and a half ago that Michael Cohen, the president's fixer and right hand man was going to appear before Congress as a cooperating witness, essentially, to the majority Democratic Party, you have would have been, "No way."

JOE LOCKHART, CNN POLITICAL COMMENTATOR: I would have said I hope so.

But, I mean, I think it was -- when we heard the tapes first, we thought, "Wow," I mean, and I don't know that we ever thought we'd get more than that, but we will.

I think it will be really interesting to see where he can talk and where he can't. I think all of the things that he's pled guilty to we're going to hear about, and that's going to be fascinating. That's going to be the hush money, maybe the Moscow project.

BERMAN: I don't think Russia.

LOCKHART: Not. But maybe the Moscow project, but not the Russia collusion.

But there's -- you know, if you believe, as I do, that Trump was running a criminal enterprise out of the Trump Organization, that's really where the motherload is. But it's going to be -- it's going to be interesting to see what he can talk about, because he doesn't want to implicate himself in anything that he hasn't been charged with yet.

CAMEROTA: It's the $64,000 question to you. Who directed the payment of the hush money? Because in the documents, that is still somewhat ambiguous.

MILGRAM: Right. And then you have Michael Cohen going on TV after he pled guilty, talking about the president's role in that.

And so what I think is going to be amazing about this is that, you know, when you plead guilty in front of a judge, even when you allocute it's five minutes, it's ten minutes; and there's no detail about how does that come to put -- how does that come to happen? Who orchestrates it?

You know, Joe makes a great point about that phone call. That's just us seeing a sliver of probably what went on between them. So I personally think if he answers the question, it's going to be fascinating.

BERMAN: Can we put the calendar up, because also interesting is the timing of all of this.

You see Cohen testimony there. It's a Cohen sandwich around Donald Trump, the president of the United States' summit with North Korean leader Kim Jong-un in North Korea. And when I saw -- the summit's in Vietnam. Joe, when I saw this, I was -- it made me think this is positively Clintonian. You would have crafted something like this when working in the scandal. If there's scandal surrounding the president, get him out of the

country. Have him go do something official like the North Korean summit.

LOCKHART: Yes, I don't know that they had that foresight. And what this reminded me of was I can't remember exactly what year it was, '94/'95, but you actually had the split screen of the O.J. verdict and the president's State of the Union. And the O.J. verdict was bigger in the picture than the State of the Union.

I think you may have this here, because, you know, the summit will just be pageantry. There will be pictures, arrival pictures, handshake. You're not going to know what happens until the end and maybe, you know, for weeks on end. This is going to be live, gripping testimony. And it is going to be the story of the day.

And, you know, it's -- it's very -- my advice for the president would be to focus on the summit, to focus on North Korea, focus on keeping the country safe, and from his staff to take his phone from him. Because he can blow this whole thing like he has done every single time by tweeting and making himself small at a moment where he should be big.

CAMEROTA: Anne, why can't all of Michael Cohen's testimony be public? Why is it only the House Oversight one that is public? Because the intel committees, they're afraid it's too sensitive?

[06:25:05] MILGRAM: So there's two things. First is that the intel committees, they always go behind closed doors. So that's the normal practice. And so this is not unusual.

Nor was it unusual for Michael Cohen to go in yesterday and potentially review whether it was his prior testimony or classified information. That's what people do.

Why it's -- one of the things that I think is interesting here is that they have taken Russia off the table for the public testimony. So that either means that Mueller has asked them to take Russia off the table or there's some -- his -- Cohen's lawyer has said, look, he's not -- there's other information he's going to provide so we would not testify to that publicly. But that, to me, is the interesting part of the story there.

You know, it's interesting. Anne brought this up point, Joe, and you can, I think, illuminate a little bit more here. If the questioning is directed, if the questioning is solid, then there might be some drama. There's no guarantee of that. Because if we learn one thing from congressional hearing, it's often that people ask them the questions. They could use a little advice on being concise.

LOCKHART: Yes, no. Listen, I think these are the first couple of what could be a year of explosive hearings. And it's certainly my hope that the congressional committees -- particularly the Democrats -- learn the lesson of, you know, snatching victory from the jaws of defeat from someone who's, you know -- is just made to look like a victim by questions. And if you look at the -- the more serious congressional inquiries

over time, it's always been done by majority counsel and minority counsel, the main questioning. Watergate, Iran-Contra, the 9/11 post- mortem. And I think -- I don't expect that to happen next week. You know, I was talking in the green room with a member of Congress yesterday and making this point. And he laughed and said no one's going to give up their five minutes.

But I do think they're going to have to get more serious about, you know, getting to the bottom of this, and the way you do that is by having counsel.

CAMEROTA: And is there any thinking that Robert Mueller will time his report to the after Michael Cohen's testimony so as not to eclipse one or the other?

MILGRAM: I think Robert Mueller is on his own time schedule. I can't -- I mean, this is going to be, I think, noise for him, and he's probably gotten what he needs from Cohen. Otherwise, there would be -- we wouldn't be going forward with any Russia testimony, probably. And so my sense is Mueller is -- he's on his own schedule.

BERMAN: I've got to say, it's awfully coincidental, though, that we think that the Mueller report is coming as soon as next week. Cohen is testifying toward the end of the week. I wouldn't be shocked if Mueller --

LOCKHART: And it's very different than the last time an independent counsel covered their report. That was delivered, it was delivered to Congress and made public. The attorney general could sit on this for a month. He has all the leeway he needs to time it when he wants to time it.

MILGRAM: I agree.

LOCKHART: Well, I expect there to be a flurry of discussion, but it won't be informed by a lot.

MILGRAM: Joe's right. It's not going to be delivered on one day and go out that afternoon. There's no question. And so we can't -- it would be -- hard to control that.

LOCKHART: But we'll still talk about it.

MILGRAM: Yes.

CAMEROTA: Nothing stops us.

BERMAN: All right. Joe, Anne, thank you very much.

Up next, why do zebras have their stripes? We may finally have the answer.

CAMEROTA: Thank goodness. This has plagued me.

BERMAN: I knew I got up at 3:15 for a reason. (COMMERCIAL BREAK)