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Trump Downplays Missile Tests; First Opioid Crisis Trial Begins; Supreme Court Upholds Ban on Abortion Restrictions; Supreme Court Won't Take Up Gender Identity Bathroom Case. Aired 9:30-10a ET

Aired May 28, 2019 - 09:30   ET


[09:30:00] POPPY HARLOW, CNN ANCHOR: Later today. Of course he's flying back from Japan. And there are growing questions on the status of his relationship with National Security Adviser John Bolton. The president publically completely disagreed with Bolton while he was on this overseas trip on North Korea's recent missile tests. The president says they were not U.N. violations. Not only did Bolton say they were, he was at the United Nations when those resolutions were passed.

JIM SCIUTTO, CNN ANCHOR: Facts are facts. I mean Bolton seems to be right on this. These type of opposing views seem to be a trend. North Korea, Iran, Venezuela, hot spots across the globe where the president publicly reigned in not only Bolton but other national security advisers, as well as the intelligence agencies and their assessments.

Let's discuss with Lieutenant General Mark Hertling, he's former commanding general of U.S. Army Europe and Seventh Army, and Rachael Bade, congressional reporter for "The Washington Post."

You know, on North Korea, General Hertling, I know you've been following this very closely, you also served in South Korea, I believe, for a time. Do I have that right?


SCIUTTO: Fair enough. All right. So, since there are two summits now, North Korea has taken no steps to rein in its nuclear program. It's the U.S. intelligence assessment that it's continued to test and perfect and so on. And now it's backtracking on two things the president claimed as victories, end to missile tests, but also turning over U.S. war remains from the Korean War.

I'm just wondering, when you look at the big picture here, is Kim playing Trump here, stretching this out, gaining more time, doing mostly what he wants to do without giving anything up?

HERTLING: Well, despite all the messaging, Jim, I think we've seen some real back sliding in terms of the relationship with North Korea. Now, some would say, yes, Kim might be playing the president. I would think that there certainly are some disconnects between what is being messaged by the president to the American public versus what is actually occurring on the ground. But some of the things also beyond just the relationship with North Korea occurred this week when the president downplayed the -- the really bad news of intensive and increased missile tests by the North Koreans.

And, yes, they weren't ballistic missiles that could reach the shores of the United States, but you can bet that the governments of South Korea and Japan were very upset about it, as I know the military commanders were from a strategic perspective that live and work this South Korea as part of the defensive alliance.

SCIUTTO: Yes, maybe there are a lot of Americans who live and work in South Korea, as well as soldiers, more than 20,000 who are posted there --

HARLOW: Right.

SCIUTTO: And at U.S. bases in Japan, Okinawa, et cetera.

HARLOW: Right.


HARLOW: So, Rachael, at least politically speaking, doesn't this boil down to the fact that if the president condemned North Korea and said, yes, this is a violation of the U.N. resolutions, as Bolton did, that would be an admission that his strategy with Kim Jong-un just isn't working?

RACHAEL BADE, CNN POLITICAL ANALYST: It seems like he thinks that, right? I mean we've seen this happen over and over again over the past few months. You know, whenever North Korea does something that, you know, rears its head, sort of steps either up to the line or crosses the line as people feel they did in this situation, the president sort of puts a rosy spin on it and a lot of that folks seem to believe is because he is concerned about saying that these peace talks that he had been trying to do with North Korea are over and that they were a failure. This is something that he wanted to claim, you know, he was the first president to meet with the North Korea dictator and he really wanted these to be successful.

And so what you're seeing right now is him sort of putting on these rose-colored glasses to sort of suggest, hey, you know, these latest moves by North Korea, they don't all together up end everything. We're still working toward peace. But the reality is that our allies, and a lot of Americans as well, including here in the U.S. Congress, they think that sort of the remarks he is making, that's only going to encourage North Korea to keep doing these sort of tests that they're doing and how far are they willing to go before Trump says this is enough, you know, these talks are over?

HARLOW: Right.

SCIUTTO: Yes. I mean there's been some reporting that Kim, aware of the politics here in the U.S., is stretching this out, knowing that Trump wants to claim a political victory there and taking advantage of that.

But, General Hertling, I want to repeat the president's remarkable comment about Joe Biden while overseas, agreeing with Kim Jong-un, and then I want to get your reaction.

Have a listen.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Kim Jong-un made a statement that Joe Biden is a low IQ individual. He probably is based on his record. I think I agree with him on that.


SCIUTTO: You've commanded forces in Europe, in Iraq, in South Korea. I just wonder how uniform military, particularly posted to a country like that, I mean you have more than 20,000 U.S. troops posted to South Korea to defend against the threat from Kim Jong-un and North Korea. When they hear the commander in chief make that kind of comment about a fellow American, how do they react to that?

HERTLING: Well, as -- if I were the commander in South Korea right now, and I'm not, I know that all of my intelligence staffers and intelligence analysts would probably be coming in and just shaking their head and saying, can you believe this happened? This is a guy we are defending against and yet the president is praising him while also denigrating a former official of the United States government.

[09:35:17] It's -- it's more of the free floating electron approach that the president takes oftentimes when he's overseas that shouldn't be done, not just from a procedural standpoint, but understanding the harm that it does to international relations, to our alliances and how we interact with them and also how we ensure our fellow partners and allies that we are defending right along with them for the president to say something like this against a dictator that we have been really opposing for the last couple of decades and his family is just unbelievable to anyone that's worn the uniform and has to do these kind of things.


BADE: Just to jump in there --


BADE: It helps Biden, right? I mean doesn't this help Biden? You would think it would.

HARLOW: I was just going to ask you that. You can --

BADE: You know --

HARLOW: Right. He doesn't have to say much.

BADE: Well, you know, and this weekend, if you look at the political headlines, Biden was getting a lot of criticism from fellow Democrats because he took the weekend off. He wasn't out campaigning with people as every other Democratic contender for 2020 was and there was this question about how long can Biden, you know, sit back and sort of stay, you know, away from, you know, reporters or how long can he do this?

But what Trump did was he totally changed the narrative. And when he attacked him, people started siding with Biden.


BADE: And, you know, I did a story with my colleague at "The Post" about Trump and Pelosi's relationship and how they were clashing and one person said to us specifically, it's better that he's attacking Pelosi and not Joe Biden. Well, guess what, that totally changed this weekend. Trump started attacking Biden and that's exactly the opposite of what his own advisers want him to do for 2020.

SCIUTTO: Well, one consistency is just making personal attacks repeatedly against fellow Americans.


SCIUTTO: Lieutenant General Mark Hertling, Rachael Bade, thanks very much.

HERTLING: Thanks, Jim.

SCIUTTO: As the -- as the opioid crisis ravages the country, a story we've covered a lot on this broadcast, today is the first day in a trial that could change how states take on the pharmaceutical industry's role.


[09:41:37] SCIUTTO: This morning in Oklahoma, a civil trial begins that could set a blueprint for how states take on pharmaceutical giants and whether they can be held financially responsible for the opioid crisis.

HARLOW: This is really important. This is a televised trial and the first of what can be thousands of trials across the country. And it is happening in a state ravaged by the opioid epidemic.

Our colleague correspondent Jean Casarez is live in Norman, Oklahoma, with more.

Jean, set the scene.

JEAN CASAREZ, CNN CORRESPONDENT: Well, this is definitely precedent setting. This is the first case to actually come to trial. And there are well over 1,500 cases that have been filed in this country from local, state, even tribal nations, but this is the very first one.

Now, since it is a civil trial, you can settle. And, actually, two very large corporations have already settled. Purdue Pharma settled in March for $270 million. Teva Pharmaceutical settled over the weekend for $85 million. But Johnson and Johnson is now, along with its subsidiaries, the only defendant left, and they have said, and let us read this statement here, we acted responsibly providing FDA approved pain medications and we are ready for trial. At the same time, with all the litigation, if an appropriate resolution is possible that avoids the expense and uncertainty of a trial, we are always open to that opportunity.

But what Oklahoma is saying is that they have an opioid crisis and Johnson and Johnson is responsible for that because they procured the raw narcotic materials that they then sold to the corporations that ended up as the opioid medication. They also marketed their own tablet, along with a fentanyl patch, that their marketing was very distorted. That they touted the benefits of this unreasonably, not telling the medical professionals or the public at large about the risks and that the un-touted benefits were absolutely unsubstantiated.

Johnson and Johnson is saying that they acted reasonably under all circumstances, that the FDA monitored them and monitors all, every step of the way, and they have not deviated from that protocol. And they also say that since 2008, that they have actually written less than 1 percent of the prescriptions that have been filed on a national level.

Poppy. Jim.

SCIUTTO: Jean, stand by there and please stand by, our viewers, we have some breaking news just into CNN.

And that is that the Supreme Court has agreed to take up a key case relating to abortion. Our Jessica Schneider covering this case.

Jessica, tell us what we're learning.

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Yes, Jim and Poppy, today the Supreme Court weighing in, in part here, on this abortion issue. So it comes down to two parts here. First of all, the Supreme Court is allowing part of an Indiana abortion law to go into effect. This part of the law, it doesn't regulate abortion, per se, but it does mandate that fetal tissue be buried or cremated.

But the Supreme Court refusing, importantly, to weigh in on a second provision of this Indiana law. This is the provision that prohibited abortions based solely on the sex, the race or the disability of the fetus. That portion of the law will remain blocked. That was decided by the lower court, the Seventh Circuit, and today the Supreme Court deciding not to take up this case, to leave that block from the Seventh Circuit intact. So the Supreme Court in deciding that the Seventh Circuit block will remain intact.

[09:45:06] They also are saying that they are expressing no view on the merits of the abortion question in denying hearing this portion of the law. So a little bit of a split decision here, a split action by the Supreme Court, but it's still significant that the Supreme Court has weighed in on this, allowing part of this abortion law in Indiana mandating how fetal tissue is disposed of, it needs to be buried or cremated, allowing that portion to go into effect and allowing also the Seventh Circuit block of part of this abortion law to also stay into effect.

And it really comes in the wake of several states passing abortion restrictions here. We have seen it throughout the country, setting up this fight, perhaps, to get these abortion issues back front and center to the Supreme Court. A lot of these anti-abortion activists are setting it up here to get Roe v. Wade potentially overturned. That's what they hope they could do with a conservative court here, with conservatives in the majority now that Brett Kavanaugh has joined.


SCHNEIDER: So significant that they even weighed in, in part.

SCIUTTO: OK, to be clear, though, they're not taking this case any higher up to the court to hear on Roe v. Wade, per se. That they are --

SCHNEIDER: That's right.

SCIUTTO: They are ruling on one feature of this and blocking it so that that -- that part of the law. OK, just want to be clear on that. Lots to discuss here.

SCHNEIDER: That's exactly right. They -- they will not be hearing a case. This is just allowing part of this law to go into effect and then also allowing what the Seventh Circuit already decided to stay in place.

SCIUTTO: OK. Just want to be clear on that.

HARLOW: Jessica, stand by. Thank you very much.

Jeffrey Toobin, our chief legal analyst, is with us now.

And, Jeffrey, just set the scene in terms of the broader context for us here because there are two Indiana laws that the justices were reviewing here. There's another ultrasound one that we're waiting to hear on if they will hear that case. Talk about what happens now and the fact that they upheld the Seventh Circuit's decision on the other part of the Indiana law which was about the woman's motivation for having an abortion.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST (via telephone): Right. I mean this is all the fallout of Brett Kavanaugh being confirmed to replace Anthony Kennedy. Anthony Kennedy was a firm vote to support woman's right to choose abortion. And Brett Kavanaugh, we don't know his views exactly, although we do know that President Trump said he would appoint people to the bench who will vote to overturn Roe v. Wade.

So in state after state, in more conservative states, they have passed laws restricting the right to abortion. Indiana is one of them. The most extreme came from Alabama just a couple of weeks ago. But there are many of these -- these laws that are now working their way through the courts.

The court here decided not to engage with the Indiana law. It decided to let stand a ruling that overturned part of it. A relatively pro- choice ruling. But the question that hovers over all of this is when and whether the Supreme Court will take on to decide on the merits one of these abortion cases, because there are going to be at least a dozen of them working their way through the courts in the next year.

HARLOW: Jeffrey Toobin, thank you. Stand by.

We're just going to talk about another decision that has come down. Jessica Schneider is with us as well.

And this has to do with the Supreme Court's decision on a ruling in favor of a Pennsylvania school district policy allowing some transgender students to use the bathrooms that match their gender identity.

Tell us more.

SCHNEIDER: Right. So the Supreme Court in this case refusing to weigh in on this. This was a lower court that allowed this Pennsylvania school policy to stay in effect. This was a policy that allowed transgender students to go into the bathroom of the gender that they identified with. This was a lawsuit brought by students who said that their rights were being violated by this policy, saying that they didn't feel comfortable, that their rights -- that their rights were being violated by having this policy that allowed transgender students to use the bathroom essentially of their choice.

A lower court allowed this policy to continue. The plaintiffs challenged it up to the Supreme Court and the Supreme Court saying today that they will not be hearing arguments on this, that they will not take this case. Instead, the lower court's ruling will stand. And this Pennsylvania school policy allowing these transgender students to go into the bathroom essentially of their choice of the gender that they identify with --


SCHNEIDER: They're allowing that policy to remain in effect by not taking this case.

SCIUTTO: Jessica --


SCIUTTO: Jessica, just to be clear here so I understand this. So is it right to read this decision on transgender rights as in effect upholding transgender rights in this small case here relating to the use of bathrooms? Is that the right way to read this decision?

[09:50:00] SCHNEIDER: That might be -- that might be a bit of a stretch. I haven't actually read the entire decision by the Supreme Court yet, it just came into us. But this is really a decision by the Supreme Court not to take this case --


SCHNEIDER: Not to hear from these plaintiffs who were challenging this Pennsylvania school policy. SCIUTTO: But leave it standing?

SCHNEIDER: So -- it does, it does.


SCHNEIDER: By -- by not stepping into this debate, it leaves that lower court decision that allows this policy to take effect --


SCHNEIDER: It leaves that in place.

HARLOW: I do think it's interesting, just broadly looking at these two decisions not to take up these two issues, interesting timing, Jess, because if they were to take them up, right, it would be in the October term. A decision would come in June likely of 2020 right in the heat of the election.

SCHNEIDER: Yes, and we've seen from the court, you know, every -- every week or so we wait and see which cases the Supreme Court will take. They've been pretty muted in what cases they've decided to take here. And these cases -- we've been waiting on these cases.


SCHNEIDER: And now we see that the Supreme Court will not be hearing them.


SCHNEIDER: So, you're right, the Supreme Court has -- has pretty consciously decided to keep back from these huge controversies --


SCHNEIDER: That could potentially be huge flash points in the election, no doubt will be.


SCHNEIDER: And perhaps you're right, perhaps there are some political motivations here that they don't want to be embroiled in these huge controversies at such a crucial time.

SCIUTTO: Well, you wonder if the chief justice is involved in this --

SCHNEIDER: Could be.

SCIUTTO: Because he's, of course, in his leadership has shown a reluctance to get the court up into those hot --

HARLOW: Of course, wanting to keep it --

SCIUTTO: Button issues --


SCIUTTO: Especially during an election year.


SCIUTTO: Great point.


SCIUTTO: Listen, we've got a lot more to talk about this. Please stay with us. And we'll be right back.


[09:56:00] HARLOW: All right, after that breaking news from the Supreme Court, let's get back to what could very likely be a precedent setting case in the opioid epidemic. This is taking place, the public trial begins today in Oklahoma.

CNN legal analyst Anne Milgram is here. She's also the former New Jersey attorney general.

Of course you think of big tobacco and obviously you have quite a lens on that. In Oklahoma, Johnson and Johnson is on trial today. It's going to be on television. It's a bench trial, no jury. And the question is, did they violate the public nuisance law in contributing to the opioid epidemic?

ANNE MILGRAM, CNN LEGAL ANALYST: Right. I mean this is fascinating. First of all, the two top Oxi producers that were about to be tried have settled. So you now have Johnson and Johnson, which is less than 1 percent of all opioid sales in the country, prescriptions, going forward to trial. What's really important about this is that everyone will be watching. What's the evidence that the Oklahoma attorney general puts in, how strong is their case.

And, second, this is a really novel way to think about the law. When you think about public nuisance, you think about sound, noise, people putting up garages in place where they're not allowed to put them up. You don't think about marketing of narcotic product. And so the judge is obviously allowing it to go forward in Oklahoma. A judge in another state did not allow it to go forward.

HARLOW: Right.

MILGRAM: And so I think there are real legal issues that are going to be surrounding this.

HARLOW: Interesting.

SCIUTTO: Let's talk about the behaviors here because this gets at the case against Johnson and Johnson because folks at home might say, well, they were selling drugs -- drug companies sell drugs. But there was -- there's specific practices here targeting veterans and children with a very addictive painkiller, overselling the benefits, downplaying the risks of these drugs, using patient front groups. I mean these are practices, from a lawyer's perspective, how strong is the case here against --

HARLOW: Which J and J vehemently denies, by the way.

MILGRAM: Right. Yes, so -- so this is an interesting -- it's interesting, when you think about tobacco, one of the key parts of the tobacco was the fraud, was the fact that the companies knew that the cigarettes were addictive and they did --

SCIUTTO: Years of data.

MILGRAM: Years. And they marketed it as though that were not the case.

Here, they dismissed the fraud claims from Johnson and Johnson. They're just bringing the public nuisance. So it's really a question of, did they market things in a way that was harmful to the public. And there has to be, you know, they're going to have to prove some -- it feels weird just to say, you did something that complied with the FDA, and now we're going to say that we can recover millions of dollars from you. So there's going to have to be some proof that they either knew that there was something happening.

HARLOW: Right.

MILGRAM: In my view, they're going to have to show more.

HARLOW: Which is what they proved with big tobacco.


HARLOW: Which then big tobacco, that first case was a blueprint for so many other states and how those settlements happened.

This case is so much bigger than Oklahoma, right, because this is a blueprint. If J and J loses, the settlements that will come after that. If J and J wins, what happens?

MILGRAM: I think so. But this is a little different because, again, they've settled out the two main Oxi and the generic Oxi maker. And so they've taken a lot of the claims that they could bring against Perdue and Teva Pharmaceuticals off the table.

Remember, there's a huge multi-state, multi-jurisdiction action in Ohio. Oklahoma didn't join that because they don't want to wait two or three years for those cases to be settled. They have a huge problem, as you said, with opioids. They are one of the highest uninsured rates in America. Their people need access to treatment. And so that's why they're pushing this forward.

And they've already recovered now, through settlements, $350 million.

HARLOW: So you would think if they win, if the state wins here, that some of that money would go to -- or settles, would go treatment facilities? We'll see.

MILGRAM: Yes, that's what they've said. That's what they've said.

HARLOW: OK. Yes, all right.

SCIUTTO: Hope so.

HARLOW: All right, thank you very much.

SCIUTTO: Although a fair amount will go to lawyers as well.

HARLOW: There you go.

SCIUTTO: That happens in these cases.

HARLOW: Always does.

SCIUTTO: Anne Milgram, thanks so much.

HARLOW: Thank you.

MILGRAM: Thank you.

HARLOW: All right, 10:00 a.m. Eastern. Top of the hour. Good morning, everyone, I'm Poppy Harlow.

SCIUTTO: And I'm Jim Sciutto.

[09:59:487] Our breaking news this hour is an outbreak. At least three hugely destructive and deadly tornados overnight in Ohio, among more than 50 in half a dozen states in just the past 24 hours. In the next 24 hours, the storm prediction center has just upped the threat of severe weather to four out of five in much of the Midwest.