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Now, Jury Selection Underway on Day 2 of Trump Hush Money Trial; Supreme Court Hears Arguments on Whether Federal Government Improperly Used Obstruction Law Against Jan. 6 Rioters; Justice Clarence Thomas Back in Court After Unexplained Absence. Aired 10- 10:30a ET

Aired April 16, 2024 - 10:00   ET

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

JIM ACOSTA, CNN ANCHOR: Good morning. You are live in the CNN Newsroom. I'm Jim Acosta in Washington.

We are following two major legal stories today impacting former President Donald Trump.

[10:00:00]

In New York, jury selection has resumed in the criminal hush money trial against Trump. He spoke before heading into court as he fights 34 felony charges of falsifying business records.

And in moments, the Supreme Court will hear arguments on whether the federal government improperly used an obstruction law when charging Trump and more than 350 January 6th rioters.

We will bring those arguments to you live in just a short while from now.

But, first, let's head to lower Manhattan and CNN Anchor and Chief Legal Analyst Laura Coates joins us from outside the courthouse as the jury selection continues this morning.

Laura, it's going to be another fascinating day. Tell us what you think is going happen.

LAURA COATES, CNN ANCHOR AND CHIEF LEGAL ANALYST: It indeed will be, and good morning to you. This is another historic moment, day two of a historic trial where you've got a criminal trial for a former president of the United States of America, a very important day. Jury selection is under way and we'll continue again today.

We're joined now this morning by CNN reporter Kara Scannell along with CNN National Correspondent Kristen Holmes. I'm glad that both of you are here.

Let's talk about what's going to happen today. We know it got to a late start yesterday, Kara, with all the pretrial motions happening in court, whether it was about recusal or sanctions for violating the gag order allegedly. Now, we're in the thick of jury selection. What are we going to see today? KARA SCANNELL, CNN CORRESPONDENT: All right. We finally got down to business around 2:30 yesterday afternoon and they seated about nine jurors in the box so far, meaning that they went through the questioning of that 42-questionnaire and had jurors there.

Now, they just started that again today. The goal here is to ultimately see the jury of 12 jurors and 6 alternates.

And how we expect this will play out today is that, they will continue to pose questions to the jurors until they have a massive 18 to fill the jury box. And then at that point, the way that the judge described how this would play out yesterday, he said that lawyers would then have 30 minutes to ask questions of these jurors. And at then point they could see if anyone is going to be struck for cause, meaning that they're not fair and impartial, or, you know, a judge feels that there's a reason why they couldn't serve.

And the prosecutor and the defense, Trump's team, could then strike a juror. And they will continue this process, because if someone is stricken, they bring someone else new into the box, start the questioning again until they ultimately have the final 18.

COATES: So, although there are nine people now, it does mean you just have three left to choose. They've got a total of 18 total. But these people who are in the box right now may not ultimately be the ones to sit there ultimately. You got the peremptory strikes to come right in for cause.

Tell me about what it's been like inside this courtroom having Donald Trump there. He now wants to be able to at least sidebar at the table in front of the judge, very limited. I mean, this is a generous amount of space to think about right now if we were in front of a judge to have the president, Secret Service potentially, the lawyers there. What is that going to be like?

SCANNELL: So, after the lunch break, The judge said he changed his mind. He said, he was not going have to sidebar. He says because the roving room, which is where this would take place, could only fit 12 people. And he said with Secret service, though, lawyers, their staff, clerks, there's just not enough room.

So, he says what he would do instead is he will excuse all of the jurors, have them all leave the courtroom except for the one that has to be questioned one-on-one, and he sets the lawyers.

Look, I don't want you to encourage jurors to ask to be question privately. This should only be something if it's particularly sensitive and that they don't want to say in front of this room.

You know, it's not a room of about 100 people, 90 or so jurors, a pool of reporters and all the lawyers. So, he's going to excuse the jurors and then have the juror answer the questions there with a microphone. So, it won't be that intimate setting one-on-one this potentially this close to Donald Trump as you're being asked to answer questions. It will be in the courtroom. It will just not have the rest of the jury there. COATES: I mean this is the court of law that we're in front of, but the court a public opinion, Kristen, will be utilized by this defendant, as it has been, either on the courthouse steps, or, of course, there's other means of communicating. How is all this going over for Trump and the campaign?

KRISTEN HOLMES, CNN NATIONAL CORRESPONDENT: I mean, right now, I think they're in a really stressful position. First of all, you look at that most recent New York Times/Siena poll, it showed Biden making gains on Donald Trump, still within the margin of error. But that's something that Donald Trump doesn't want to see, especially at a time in which he cannot leave New York for four days a week.

Not that necessarily he has been having an extensive campaign. We really haven't seen him on the trail more than two days a week, as it is. But, for example, this week, they're trying to figure out ways to get the public's attention around Donald Trump, around this court appearance, without having the ability or the flexibility to leave whenever they want to.

So, what does that look like for the next couple of weeks? It looks like him trying to hold rallies potentially in the suburbs of New York or in other boroughs that actually voted for Donald Trump.

But I do want to say one thing about jury selection, in general, because this is the one that I really want double down on what his lawyers are looking for. They are not very optimistic that they are going to win this case.

When you hear Donald talking about the fact that he doesn't think he can get a fair jury, even his lawyers have said privately that they are concerned about the fact that the political makeup of New York City is not favorable to Donald Trump.

[10:05:04]

But what they are looking for is a potential hung jury. And so what they're looking for is someone who could be at least somewhat sympathetic to Donald Trump.

Now, whether or not they can get there with the questionnaire, with the questioning, unclear, but that's what their real hope is here, is that not necessarily they're going to win the case, but the next best outcome here, a hung jury.

COATES: A really important point, too, because when people talk about whether you can get a fair jury, a fair jury does not mean that you will always get an acquittal. It could mean it's a fair jury, and they end up following the evidence that shows a conviction. But I think in Trump's world, he believes possibly that a fairness will only equal acquittal. But this jury pool could be impartial, and still the prosecution must prove their burden.

But it's still not going to be a cakewalk, is it? I mean, a lot of the information they're going to be hearing, many of these jurors, the jury questionnaire, which is quite lengthy, are going to be familiar with at least some parts or characters in this, whether it's Stormy Daniels or Michael Cohen, or of course, Donald Trump himself.

But these questions are being asked in jury selection. They're not the run-of-the-mill, are they?

SCANNELL: No. I mean, there are your basic ones of, you know, what are your hobbies, are you married, what do you do for a living. But then there are very specific ones to this case. And, you know, it's not, do you donate or which side are you, a Democrat or Republican? The judge has steered away from that.

But these are specific questions of, you know, have you listened to Michael Cohen's podcast? Have you read his book or any of Donald Trump's books? Have you attended any rallies in support of Donald Trump or any and against Donald Trump? Have you ever volunteered for a campaign?

And the judge has been very clear here. He's saying, you know, because one of Trump's lawyers had said at one point, ultimately, he wants to know, do you like Donald Trump or not? And the judge said, that's not what we're doing here. You can have an opinion, but can you be fair and impartial? Can you set it aside? Can you follow my instructions and look at the evidence, decide if you believe the evidence and come up with a decision whichever way it goes?

HOLMES: And, Kara, I'm curious if you've heard this, I've heard this from Trump's team, but I'm not sure if the, I think the prosecutors feel this way too. There is some concern that because Donald Trump is such a polarizing figure, that there will be people who lie on the questionnaire because they want to form an opinion and they want to go forward.

I thought it was interesting to hear that that might be a concern on both sides, that someone might be trying to slip in to the jury, whether they are pro-Donald Trump and saying that they're neutral or the opposite. And I think it's very -- it's just telling that we live in such a polarizing time and this is such a polarizing figure, that this is a concern possibly on both sides.

COATES: Beware of the stealth juror as they say on both sides of the issue. Jim, we're going to take it back to you.

ACOSTA: All right. Laura Coates, thank you very much.

And right now, the Supreme Court is hearing arguments in a case that could undermine the charges against hundreds of January 6th rioters and even Donald Trump. The nine justices will consider whether a federal law that makes it a crime to obstruct an official proceeding can be used to prosecute those who stormed the Capitol, including this defendant, former Pennsylvania Police Officer Joseph Fischer. You can see him right there on screen.

Trump is not involved in this particular case, but he has been charged with the same criminal offense for plotting to subvert the 2020 election.

Let's discuss this with CNN Chief Legal Affairs Correspondent Paula Reid and Defense Attorney and former Federal Prosecutor Shan Wu.

And, Paula, I mean, before we talk about the arguments of this case, the control room just told me a few moments ago, currently Justice Clarence Thomas is at the Supreme Court today. So, for folks who were wondering, because he wasn't there, was it yesterday --

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: Yes.

ACOSTA: -- what's going on here? But let's talk about this case in particular.

REID: I mean, let's talk about Justice Thomas.

ACOSTA: Oh, if you want to, sure, dive right in, yes.

REID: I really think this is the biggest question today, right? And if I'm waking up at the Biden campaign or the Trump campaign today, my first question is, is Justice Thomas going to be at court today? Is he okay? Because yesterday he was absent and the court, the least transparent branch of government, did not give any explanation. Usually they do explain. There's also the option to go remote.

He is the most senior associate justice. He missed some arguments back in 2022 because of an infection. And, Jim, we both covered 2016. We know what an influence the Supreme Court and even the specter of a possible vacancy could have on a presidential election.

So, the number one question today was going to be, is Justice Thomas there, yes, okay, how does he look, how does he sound, in addition to, of course, this incredibly consequential argument.

ACOSTA: Yes, the composition of the court on everybody's mind, I mean this campaign cycle, there's just no question about it.

And, Paula, let's talk about this case because the arguments surrounding this case are fascinating, and what we're going to hear, I suppose, Shan, and you can chime in as well in a few minutes, the Supreme Court is going to be talking about some of the particulars of what took place on January 6th and whether this particular law should be used in charging some of these rioters.

REID: Yes. This is a case that could have enormous implications for hundreds of people who are charged related to January 6th and possibly have an impact on the prosecution of former President Trump.

The federal law we're talking about, it criminalizes any effort to corruptly obstruct or influence or impede an official proceeding. And you can be sentenced to that for 20 years, that this is significant.

[10:10:01]

This law was passed in 2002, part of Sarbanes-Oxley in the wake of Enron. And defendants, like Mr. Fischer and others, have argued that this Law wasn't meant to apply to people who attacked police officers at the Capitol. This was meant to apply to people who potentially tamper with evidence. Now, the district court, when this challenge was made, agreed, but the appellate court actually sided with the government and their broad interpretation of the law. So, now, all eyes on the Supreme Court.

ACOSTA: Yes. And, Shan, a lot of these defendants have been charged with other things, beating up police officers, breaking and entering into the Capitol and so on. So, it doesn't blow up all of those cases, but it is an important aspect of it.

SHAN WU, DEFENSE ATTORNEY: It is. I also certainly don't think it will blow the charges against Trump in particular because this aspect is also covered for him by the actual type of false documents with the fake electors scheme and such.

So, I don't think, ultimately, even if the Supreme Court were to reverse on this aspect of it, it's going to affect him that much. I mean, frankly, I should have taken the case. I think this is -- you know, if you're going just plainly read the statute, it says what it says. It does affect this kind of proceeding.

If you want to go way back in the time machine, I actually was on the defense side in Enron investigation. I think this an example of why you don't legislate based on scandals.

ACOSTA: Interesting. And, Paula, I mean, the other thing that is going to emerge, I think, in these arguments, some of the arguments and details surrounding January 6th, again, we're, what, three, almost four years from the attack on the Capitol. A lot of these cases just have not been fully adjudicated, and every so often, a surprise, a new detail emerges, a new wrinkle in what took place emerges.

REID: I don't think even in reading the details of Mr. Fischer's case, it's a reminder, even as someone who has covered this for years in these prosecutions of what happened that day, the gravity of the situation, here are the challenges, how do you charge it?

ACOSTA: All right, guys. We're going to jump in. Let's listen to the arguments at the Supreme Court on this January 6th case. Let's listen in.

JEFFREY T. GREEN, LAWYER FOR JAN. 6 DEFENDANT: -- the impairment of integrity or availability of information and evidence to be used in a proceeding.

In 2002, Congress hedged a little bit and added Section C2 to cover other forms of impairment, the known unknowns, so to speak. It was, after all, that dawn of the information age.

Until the January 6th prosecutions, Section 1512(c)(2), The Otherwise provision, had never been used to prosecute anything other than evidence tampering. And that was for good reason. This court has said that otherwise, when used in a criminal statute, statute means to do similar conduct in a different way. The government would have you ignore all that or disregard all that and instead convert C2 from a catch-all provision into a dragnet. One of the things that that drag net would cover is Section C1. Our construction of this statute at least leaves C1 and C2 to do some independent work.

The January 6th prosecutions demonstrate that there are a host of felony and misdemeanor crimes that cover the alleged conduct. A Sarbanes-Oxley-based, Enron-driven, evidence-tampering statute is not one of them. I welcome the court's questions.

JUSTICE CLARENCE THOMAS, U.S. SUPREME COURT: Mr. Green, how do we determine what these two provisions have in common? Do we look after the otherwise or before and why?

GREEN: You look at before, Justice Thomas. And you look at the kinds of manner in which documents and records are to be impaired, and then you looked after to see what the effect is. But I would submit that the affect is the same, right, in order to cause the impairment of the integrity of the evidence that's to be used in a proceeding or to prevent its availability. So, we look back and we look forward.

THOMAS: And wouldn't it be just as easy to look at the C2 and then ask what it has in common with C1 and use C2's provisions as a basis for that similarity?

GREEN: No, because C2 speaks to the effect of the actions that the otherwise clause covers. So, in other words, we look at C1 and we see that Congress is concerned about documents and records and other objects and things that are done to those to impair the integrity of those. And the affect of that is to obstruct. And so C2 omits that object and for section --

[10:15:03]

THOMAS: But you could just as easily say that Congress is really concerned about things that obstruct, influence, or impede official proceedings, and that's C2. So, why isn't that the basis for the similarity?

GREEN: Well, because of the presence of the otherwise provision. So, otherwise, as I mentioned, otherwise, this court has said, means to do similar conduct in a different way. But what we've got here is the impairment of evidence being done in a different way.

JUSTICE SONIA SOTOMAYOR, U.S. SUPREME COURT: I'm sorry. I thought was, yes, doing it in a different way. So, let me give you an example. There is a sign on the theater, you will be kicked out of the theater if you photograph or record the actors or otherwise disrupt the performance.

If you start yelling, I think no one would question that you can be expected to be kicked out under this policy, even though yelling has nothing to do with photograph or recording. The object that the verb is looking at -- the verbs are looking at is the obstruction. It's not the manner in which you obstruct, it's the fact that you've obstructed. Isn't that the structure of this provision? GREEN: It is, your Honor. It's in part the structure of the provision. But what your hypothetical omits is that there is a specific retriculation, I guess it's called, of all of the different sorts of things that might be done to evidence to begin with.

SOTOMAYOR: Except that what's fascinating about 1, which is not about 2, is that 1 doesn't require you to have actually impeded the proceeding. 1 requires you to have that intent, but you don't actually have to accomplish the intent. 2 requires you to accomplish the intent. And so that's a very different articulation of what the object of 2 is. The object of 2 is the actual disruption of the proceeding.

GREEN: Well, I respectfully disagree because --

SOTOMAYOR: Well, why? Look at the language, alters, destroyed, mutilates, or conceals a record. I do that in my home, and I do it anticipating that it might be needed. All I have to do is have the intent to impair. By that very language, I don't have to have an actual proceeding that I've impaired, until you need an actual proceeding to impair.

GREEN: I guess I'm a little confused, Justice Sotomayor. Because as I read this, I would think that the government would say that any attempt at one is also covered by the statute, and I'm not sure that I would disagree. So, I don't think that there has to be an actual impairment.

SOTOMAYOR: No. I do think under 1 you don't need an actual impairment, under 2 you do. If you read it, the verb requires you to actually obstruct the proceeding in 2. Nowhere in 1 do you actually have to obstruct.

GREEN: Well, in 2, you only have to attempt to do the things that are in 2.

SOTOMAYOR: No, otherwise, obstructs or impedes or attempts to, yes.

GREEN: Yes

JUSTICE AMY CONEY BARRETT, U.S. SUPREME COURT: Counsel, can I ask you whether -- let's imagine that we agree with you. On remand, do you agree that the government could take a shot at proving that your client actually did try to interfere with or under C1 -- or actually, no, sorry, under C2, obstruct evidence because he was trying to obstruct the arrival of the certificates, arriving to the vice president's desk for counting, so there would be an evidence impairment theory?

GREEN: I'm quite sure that my friend would take a shot, your Honor, but I would say, no. And the reason why is that this statute prohibits operation on specific evidence in some way, shape, or form.

Attempting to stop a vote count or something like that is a very different act than actually changing a document or altering a document or creating a fake new document. BARRETT: Well, he's obstructing evidence in my hypothetical. I mean, he's not actually altering the vote certificates, which is why I corrected myself and said under C2. I mean, would that be different than someone, say, in a trial or criminal proceeding, trying to prevent evidence that was going to be introduced in the proceeding from making it there? So, I'm imagining him acting on the certificates, not the act of counting them.

GREEN: Well, again, I think they could try it. But I don't think that we're talking about trying to impair just anything other than the evidence itself.

[10:20:07]

We're trying to obstruct a proceeding. And there's questions about what proceeding means here, as your Honor doubtless knows.

But what the government would essentially be doing, as you noted, is converting what they've charged in C2 to a C1-type of crime.

BARRETT: No, no, no. C2 -- I mean, as I understand -- maybe I'm misunderstanding your argument, but I thought your argument was that C2 picks up other things, but they just have to be evidence-related. So, in the hypothetical I'm giving you, it's evidence related because it's focused on the certificates, but it's obstruct, obstruct or impede, say, the certificates arriving to the vice president's desk insofar as the goal was to shut down the proceeding and therefore interfere with the evidence reaching the vice president.

GREEN: I still -- that's closer. It's definitely closer. But if you zoom out and look at all of 1512 in order to understand what kinds of impairment we're talking about, we are talking about or Congress is prohibiting the kinds of impairments that actually change documents that actually affect their integrity.

If it's just impeding or delaying, we'd submit actually that that is not part of 1512C. Delays are mentioned in five other parts of 1512, but not in C.

JUSTICE KETANJI BROWN JACKSON, U.S. SUPREME COURT: But, Mr. Green, if Justice Barrett is wrong, then what work is C2 doing? I mean, it seems like you've just now rearticulated only the theory of C1, and you're saying that you have to make it into C1 in order to be -- you know, to have this statute apply. So, can you help me at least understand under your theory what additional thing does C2 offer?

GREEN: Let's look at the verbs of C1, which are alter, destroy, mutilate and conceal, and let's think about their antonyms. So, one, instead of destroy would be actually to create. So, one could use some sophisticated computer program. We've heard an awful lot about A.I. And we've heard about the possibility of deep fake photographs. So, I think you would violate C2 if you created a photograph that established your alibi in some extremely sophisticated way that would get it admitted into evidence, or make it, or you submit it for evidence would probably be where the crime occurs. JACKSON: So, you're saying there are other things other than particularly altering, destroying, mutilating or concealing, but it has to be limited to a record?

GREEN: Not necessarily. Because, I mean, one other example, if I might, your Honor, would be not to conceal but to disclose. So, if I disclosed a witness list in a large --

ACOSTA: All right, you were listening to arguments there at the Supreme Court on whether the federal government improperly used an obstruction law against some of the January 6th rioters. You can see Justice Ketanji Brown Jackson going over some of these arguments with Jeffrey Green, a lawyer for one of those defendants.

And I'm back out here with Paula Reid and Shan Wu.

A fascinating case, obviously lots of implications for all of those January 6th defendants, possibly for the former president and all of this. But, you know, one of the things that we jumped on this as soon as we came on the air with this, Paula, and that is Clarence Thomas, yesterday was missing -- missing in action yesterday. We didn't really get a clear explanation as to what was going on. He's back today. And as Shan was noting as we were watching this, you can see as we were off camera at that point, he was pretty active there.

REID: Yes, clearly making a point, right? Because as we said before the argument started, the biggest question before we get to the legal arguments, where is Justice Clarence Thomas? Because as you said yesterday, not only was he absent, they didn't provide an explanation. And as the most senior associate justice on the Supreme Court, that raises a lot of serious questions because we are in an election year.

ACOSTA: Never a good idea in D.C.

REID: Never a good idea in D.C. And also the lack of transparency from the court is not helpful in this situation.

He is back. He is on the bench. And it was like he was trying to make a point. I'm here. He sounded like he was in good health. And not only does he appear to be, you know, in good health, he also appeared to want to make a point that he could ask tough questions of both sides because there have been calls for him to recuse himself from cases related to January 6th because of his own wife's efforts to subvert the election.

Obviously, he didn't recuse himself, but it appeared that Justice Thomas had something to prove this morning, and, yes, he made his point.

ACOSTA: Yes. And, Shan, what about that, I mean, the fact that Clarence Thomas continues to be involved in these January 6 cases?

WU: I mean, it really just goes to show that there is no accountability for the Supreme Court justices. They do whatever they want. I mean, this sort of silly code that they finally came out with has no teeth to it, whatsoever. And I think, come hell or high water, Justice Thomas was going to be there today to put a finger in the eye of people saying, you need to be recused. He's like, no, I don't. And as Paula was saying, first question out of the box is a question that would be considered pro-DOJ prosecution.

[10:25:00]

And he wants to show I can be impartial, I can do this, and he really should not be in the position to do that.

ACOSTA: All right. Well, guys, great discussion. We've got more to talk about after the break. We'll take a quick break. Be right back.

(COMMERCIAL BREAK)

COATES: Welcome back, everyone. I'm Laura Coates outside the courthouse as jury selection continues this morning in a historic trial. One would call it the Trump hush money trial right here in Manhattan.

With me is CNN's Kara Scannell and CNN Legal Analyst Norm Eisen.

Norm, you were just watching the proceedings from inside. Walk us into the room. What are you seeing?

[10:30:00]

Are the jurors who are waiting to be questioned still there? What's the atmosphere like? Get it all to me.