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Day 2 of Trump Hush Money Trial Now Underway with Jury Selection; Increasing Effort to Remove House Speaker Mike Johnson; "Not Resigning", Absurd Notion to Bring a Vacate Motion, Says Speaker Johnson; Arguments on Federal Government's Alleged Inappropriate Use of Obstruction Statute Against January 6 Rioters Heard by the Supreme Court. Aired 10:30-11a ET

Aired April 16, 2024 - 10:30   ET

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

[10:30:00]

LAURA COATES, CNN HOST: Are the jurors who are waiting to be questioned still there? What's the atmosphere like? Get it all to me.

NORM EISEN, CNN LEGAL ANALYST: Well, it was slow going this morning because human life intrudes on court proceedings. So, three of the jurors from yesterday hadn't shown up, including two who were in the box for questioning. Another one had flu like symptoms, was sequestered out in the hallway.

So, there was a delay. We were supposed to start at 9:30 sharp. We didn't start at 9:30 sharp. Then the late ones started trickling in. And we began with the jury questioning. And sure enough, the first juror that we really got into it with, turned out to be a case of potential bias.

COATES: How so?

EISEN: Well, it started off promisingly for Team Trump, and I could see them perching at the edge of their chairs because it's not that easy to get strong pro-Trump bias in a lean, let's say, in a Manhattan jury pool. This gentleman worked in finance. He was from Texas. He said that most of his associates, including back home, were from Texas.

And the Team Trump was excited until the judge has put together a very detailed, very -- the most I've seen in over 30 years of practicing law, very incisive, until we got to the question about might you be biased? And he said, Judge, I might have an unconscious bias. She was sophisticated. And you could, sort of, see team Trump say, oh, I see where this is going. And sure enough, juror excused. They lost their potential.

COATES: I mean, the idea that they might have this unconscious bias in favor of Trump, it sounds like, must have been very deflating for the Trump team. But this is how the bias is working both ways, right? Both are going to have the option to cut somebody and not have them being a part of the jury. And if it's a four-cause scenario where the judge is saying, look, if you can't even at this juncture, tell me you're going to be able to follow the evidence and instructions of the court. That's a problem.

But we are still hearing motions, aren't we, this morning? This is not all done yet. There's still paperwork being filed in the courtroom.

KARA SCANNELL, CNN CORRESPONDENT: Yes. So, they just -- you know, yesterday they came in and they said that they believe Donald Trump had violated the gag order based on four posts that he made on social media over the past week or so.

And so, today they filed the official paperwork, this actual motion to show cause and their support for it. And you know, again, they're saying they want $1,000 fine for every post. They want Trump to be ordered to take down the post. And they want him to be warned that if he violates it again, he could face not just fines, but also up to 30 days incarceration. So, 30 days in jail. They want the judge to make that.

Now, Trump's team has said they don't think he violated the gag order. That he was just -- he wasn't looking to criticize Michael Cohen and Stormy Daniels, two key witnesses, and that's why they are protected in this case because they are expected to testify. But saying that they were making comments about Trump. Trump was responding to that.

So, the judge has scheduled a hearing for Tuesday where he will take this issue up and we'll see what he ends up saying if he finds Trump violated it and how he would resolve it if he thinks he did.

COATES: Is that enough, Norm, to say, look, I was only responding. Yes, I've got a gag order, but you're messing with me. I'm giving it right back to you.

EISEN: Well, part of the reason that I think the judge is taking a week to allow this to be set up is because it does implicate complex First Amendment issues. I thought it was very interesting to that same point that these gag orders are not that simple to implement. Trump has also tweeted -- continued to tweet about the judge's daughter, to RT (ph) what other people are saying.

That didn't even make the cut to get into the DA's motion because Trump does have very broad First Amendment latitude. We know he's willing to go up to the First Department, the appellate court that oversees. He went three times last week. So, the judge is being very careful.

I think Trump has a good faith argument that is not a frivolous defense. That, hey, if people are going to talk about me. I need to be able to defend myself. We're in the middle of a presidential campaign for crying out loud. I do think the judge is going to warn him, don't do it again. Do not talk about witnesses in this case. And, once he gets that additional warning, then that sets up subsequent sanctions. It will have to go on for a while before there's serious prospect of stepping Trump back and putting him in custody.

COATES: Yes, I was going to say, wouldn't it -- it's a historic moment to have a criminal trial. It would be historic to have him step back, which is fancy for it, taken to jail during the interim of his trial as a candidate, as a former president of the United States. A lot to get to. Thank you. Stick around both of you.

We've got a lot more coverage after a quick break.

(COMMERCIAL BREAK)

[10:35:00]

JIM ACOSTA, CNN NEWSROOM ANCHOR: Up on Capitol Hill, the effort to oust House Speaker Mike Johnson is growing. GOP Congressman Thomas Massie is now supporting Congresswoman Marjorie Taylor Greene's effort to remove Johnson as Speaker.

Let's go straight to CNN's Lauren Fox. Lauren, you know, when the speakership is hanging by a thread these days, one or two votes might make the difference. I suppose this is kind of important.

LAUREN FOX, CNN CONGRESSIONAL CORRESPONDENT: Yes. I mean, this is a very significant development and that is because after April 19th, when Gallagher of Republican steps aside, gives up his seat, that means Johnson can only leave -- lose a single Republican member.

[10:40:00]

If there are two members wishing to oust him, that would be enough to do the job unless Democrats step in to save him. And we should note that two Democrats reaffirmed this morning, Jared Moskowitz and Tom Suozzi, that they would be willing to vote yes on a motion to table. That, essentially, is a procedural step they could take to essentially neutralize an effort to oust Johnson from the speakership.

Now, Johnson is defiant this morning. Saying that he will not step down. Here he was just moments ago.

(BEGIN VIDEO CLIP)

REP. MIKE JOHNSON (R-LA), U.S. HOUSE SPEAKER: I am not resigning. And it is, in my view, an absurd notion that someone would bring a vacate motion when we are simply here trying to do our jobs. It is not helpful to the cause. It is not helpful to the country. It does not help the House Republicans advance our agenda, which is in the best interest of the American people here, a secure border, sound governance. And it's not helpful to the unity that we have in the body.

Look, we have a very important mission here. Our mission is very clear. The reason most of us -- and I can speak for the House Republicans, the reason every House Republican ran for Congress is because they wanted to come here and help to save this beleaguered republic of ours. We want to save the country.

(END VIDEO CLIP)

FOX: And of course, Johnson referring there to the series of votes he expects House Republicans to take later this week to aid Israel, to aid Taiwan, to aid Ukraine. And that last piece is really controversial among Republicans. That is what has people like Marjorie Taylor Greene, people like Thomas Massie, threatening to oust him from the speakership.

The mere existence of putting it on the floor may be enough for him to be threatened in his job. But he is defiant this morning, saying that he is not going to resign. He is still moving forward with that plan to vote on separate packages. And again, you have a number of Democrats already publicly saying that they would try and neutralize that effort to oust him, to create some stability within the House of Representatives.

And, you know, Jeffries' behind closed doors. The Democratic leader this morning was urging members of his caucus not to get stuck in the procedural questions to really look at what this larger Ukraine and Israel supplemental package is going to look like before committing to anything. But already two of his members saying that they would be willing to help Johnson, that is significant this morning.

ACOSTA: Yes, Lauren, our Manu Raju caught up with Congressman Massie and he said straight up, I asked. Johnson to resign. If you can refresh us on how this would work. I mean, Marjorie Taylor Greene could make the motion to vacate and then the procedures would sort of snowball from there. How would that work?

FOX: Yes, exactly. I mean, remember how sudden it was when Matt Gaetz went to the floor and brought forward that motion to vacate against Kevin McCarthy? There wasn't really that much time for Democrats to have a conversation about what they were going to do.

And in this case, what you are hearing from Marjorie Taylor Greene is she has not committed to win or even if she is ultimately going to try to oust Johnson. But obviously Massie is saying that he would be supportive of her effort does strengthen her hand, and that she now has someone who would help her. Someone who would vote with her. That obviously doesn't just isolate her within the Republican conference.

So, that is a significant development this morning, even though you already have some Democrats saying that they would be willing to step in. I mean, when votes are this narrow, when your Republican majority is this narrow, every single vote counts. And that is something to keep a very close eye on, Jim.

ACOSTA: Yes. A lot of pressure on the speaker to not put that aid to Ukraine bill on the floor if it goes in as a standalone bill. All right. Lauren Fox, thanks very much.

We'll be right back.

(COMMERCIAL BREAK)

[10:45:00]

ACOSTA: All right. Returning now to Supreme Court arguments in a crucial case that could overturn hundreds of obstruction charges against the January 6th insurrectionists. It could also have a major impact on the charges that Special Counsel Jack Smith has brought against Donald Trump.

The federal government has started their argument. The Solicitor General, Elizabeth Prelogar, is talking. Let's listen in.

CLARENCE THOMAS, U.S. SUPREME COURT JUSTICE: -- to other protests in the past, and has this been the government's position throughout the lifespan of the statute?

ELIZABETH B. PRELOGAR, SOLICITOR GENERAL: It has certainly been the government's position since the enactment of 1512(c)(2) that it covers the myriad forms of obstructing an official proceeding and that it's not limited to some kind of evidence impairment gloss.

THOMAS: Have you --

PRELOGAR: With --

THOMAS: -- so have you enforced it in that manner?

PRELOGAR: We have enforced it in a variety of prosecutions that don't focus on evidence tampering. Now, I can't give you an example of enforcing it in a situation where people have violently stormed a building in order to prevent an official proceeding, a specified one from occurring with all of the elements like intent to obstruct, knowledge of the proceeding, having the corruptly mens rea. But that's just because I'm not aware of that circumstance ever happening prior to January 6th.

But just to give you a flavor of some of the other circumstances where we have prosecuted under this provision. For example, there are situations where we've brought (c)(2) charges because someone tipped off the subject of an investigation to the grand jury's hearings. There was another case where someone tipped off about the identity of an undercover law enforcement officer.

And in those situations, there's no specific evidence. No, you know, concrete testimony or physical evidence that the conduct is interfering with. Instead, it's more general obstruction of the proceeding. Justice Alito mentioned the Wright case as well, and that's another one where it was a forged court order that prompted the litigant to dismiss a mandamus petition. But that didn't have anything to do with the evidence that was going to be considered in that proceeding.

[10:50:00]

THOMAS: So, what role does (c)(1) play in your analysis?

PRELOGAR: So, we understand 1512(c) to split up the world of obstructive conduct of an official proceeding into the (c)(1) offense and into (c)(2). (C)(1) covers everything it enumerates. It's the acts of altering, concealing, destroying records, documents, or other objects. And then (c)(2) would only pick up conduct that obstructs an official proceeding in a different way.

So, there's no duplication or superfluity on our reading. Instead, Congress was taking this universe and dividing it up into the two separate offenses. And I think that's actually a virtue of our reading as compared to petitioners, because I have not heard him articulate anything that would fall within (c)(1) that wouldn't also come within (c)(2). So, on his reading (c)(2) really does just swallow (c)(1) whole.

THOMAS: Well, you -- I mean in the way you're reading it, (c)(1) -- (c)(2) almost exists in isolation, certainly not affected by (c)(1).

PRELOGAR: We don't deny at all that there is a relationship between the two provisions, Justice Thomas. But it's --

THOMAS: What is that relationship?

PRELOGAR: And the relationship is the one Congress specified in the text. It's what follows the word otherwise. That is the relevant degree of similarity. What both (c)(1) and (c)(2) have in common is that they -- or aim at conduct that obstructs an official proceeding. (C)(1) does so in one way, tampering with records and documents. (C)(2) does so with respect to all other conduct that in a different manner does that.

And I think that this has to be the road the court goes down to look at what Congress actually prescribed with respect to similarity. Because in contrast, if you take up petitioner's invitation to come up with some, A, textual gloss from (c)(2) to port over into (c)(2), I don't understand what the court could look at to guide its determination of exactly what the relevant similarity would be.

JOHN ROBERTS, U.S. SUPREME COURT CHIEF JUSTICE: General, I'm sure you've had a chance to read our opinion released Friday in the Bissonnette (ph) case with -- it was unanimous, it was very short. But it explained how to apply the doctrine of ejusdem generis. You know, and it -- what it said is that specific terms, a more general catch all, if you will, term at the end, and it said that the general phrase is controlled and defined by reference to the terms that precede it.

The otherwise phrase is more general, and the terms that precede it are alters, destroys, mutilates, or can -- and seals a record and document. And applying the doctrine, as was set forth in that opinion, the specific terms, alters, destroy, and mutilate carry forward into two, and the terms record document or other object carried -- carry forward into two as well. And it seems to me that they -- as I said, sort of control and defined the more general term.

PRELOGAR: So, Mr. Chief Justice, I think that the statute --

ROBERTS: You know, I'm sorry, just to interrupt so I could put out exactly what --

PRELOGAR: Yes.

ROBERTS: And the otherwise means in other ways. It alters, destroys, and mutilates record, document, or other objects that impede the investigation and otherwise -- in other ways accomplishes the same result.

PRELOGAR: So, I think the problem with that approach with respect to 1512 is that it doesn't look like the typical kind of statutory phrase that consists of a parallel list of nouns or a parallel list of verbs where the court has applied a ejusdem generis or the noscitur canon. You know, these are separate prohibitions that have their own complex, non-parallel internal structure.

And I think actually, the best evidence that it's hard to figure out how you would define a degree of similarity between them just by based on the word otherwise is that the -- there are multiple competing interpretations at issue in this case. You know, Justice Alito touched on them and they're reflected in the competing interpretations between Judge Katsas on the D.C. Circuit and Judge Nichols on the district court.

ROBERTS: Competing interpretations of what? Which phrase?

PRELOGAR: So, and it relates to exactly the question you asked me, which is that Judge Nichols thought that (c)(1) should limit (c)(2). And he looked at it and said, well, the relevant thing about (c)(1) is it deals with records, documents and other objects. And so that means (c)(2) should be limited only to other acts that impair physical evidence.

Meanwhile, Judge Katsas looked at the specific intent requirement in (c)(1) to take action that impairs the availability or use of the evidence, and he defined a broader gloss to put on (c)(2), and said, it should be --

ROBERTS: O, but that's simply saying --

PRELOGAR: -- other impairment of all their evidence.

ROBERTS: Well, they're just applying the same doctrine to different aspects of it, and I think you do that as well. One of the common elements alters, destroy, and mutilates a record or a document. You have the first few, what you're doing and what you're doing it to. And you can apply both of those in -- as it's said in Bissonnette (ph), controlling and defining the term that follows so that it should involve something that's capable of alteration, destruction, and mutilation in -- with respect to a record or a document.

That's how you --

PRELOGAR: So, I actually don't even understand --

ROBERTS: -- that's why -- when you apply that doctrine, again, as we did on Friday, it responds to some of the concerns that have been raised about how broad (c)(2) is. You can't just attack it on and say, look at it as if it's standing alone because it's not.

[10:55:00]

PRELOGAR: So, let me respond to that in two ways. I do want to have a chance to address any concerns about breadth (ph). But the more fundamental point, I think, is that I don't even understand petitioner to be suggesting that you can mix and match the verbs and the nouns from (c)(1) and (c)(2) in this way. Judge Nichols had a more limited view that (c)(2) exclusively focuses on physical objects. It wouldn't apply to things like testimony because of the limitation that he gleaned from (c)(1). Judge Katsas, I think, may be in line with your question, would interpret it more broadly.

And the basic point is a textual matter, is that there is nothing in the text of (c)(2) itself to disclose what the relevant similarity from (c)(1) ought to be. Instead, we think the relevant similarity is obstruction of an official proceeding, because that's the language Congress chose.

ROBERTS: General, if that's --

NEIL GORSUCH, U.S. SUPREME COURT JUSTICE: If that's the case, what work does authorize do on your theory? Because I think I would -- might, as I'm hearing you, I think that whoever corruptly obstructs, influences, or impedes any official proceeding or attempts to do so stands alone. And the otherwise, I'm not hearing what work it does. Can you explain to me what work it does, on your view?

PRELOGAR: Yes. So, the work that otherwise does is to set up the relationship between (c)(1) and (c)(2) and make clear that (c)(2) does not cover the conduct that's encompassed by (c)(1). Now, I acknowledge that there were then --

GORSUCH: Beyond that. Beyond that. Beyond saying, OK, (c)(1) does some things, and the whole rest of the universe of obstructing, impeding, or influencing is conducted by (c)(1) --

ACOSTA: All right. And there you just heard the U.S. Solicitor General Elizabeth Prelogar going back and forth with the justices on the Supreme Court about these arguments as to whether or not a law was properly used against some of the January 6th defendants.

We should note, obviously, Shan Wu and Paula Reid are back with us that a lot of these defendants are facing other charges, assaulting police officers, breaking into the Capitol and so on. So, this one charge of the Supreme Court says, no, no, no. This was improperly used. It doesn't upend all of these different cases.

But one of the questions I had watching this unfold this morning is, why the justices are taking this before the immunity case pertaining to Donald Trump? I mean, that seems to me to be a much more significant case. And here we are waiting, day after day after day, for that matter to be resolved at the high court, Shan.

SHAN WU, DEFENSE ATTORNEY AND FORMER FEDERAL PROSECUTOR: It's almost like they're slow walking, the immunity case, almost. Arguably, from the timeline, there are a lot of cases that have been brought under this. People have been convicted. So, you know, there's some logic to dealing with this. First, the immunity case has come up a little bit later in the timeline.

I was very struck by listening to the Solicitor General's reactions here and her argument that she so skillfully used Justice Thomas's question, kind of, against him. He was trying to say, hey, you've never used it in this way before. And she said, no, but yes. Which is no, we haven't because we haven't had a case where people have stormed the Capitol attempting to overturn the election. So, that was really well done.

I think she put her finger on the difference between her argument and the attorney for Fisher's argument, who opened up rather weakly by saying that there's a difference between, as he called it, a catch all and a drag net, kind of sounds the same thing to me. It is a catch all provision.

ACOSTA: Yes. I mean, Paula, here we are. I mean, we're almost -- we were in the thick of the 2024 presidential campaign. We're still adjudicating January 6th.

PAULA REID, CNN SENIOR LEGAL AFFAIRS CORRESPONDENT: Yes, three years later.

ACOSTA: It's still making its way through the process.

REID: It takes time. Look, it's a historic case in terms of the number of people who have been charged. This is --

ACOSTA: A lot of people think it's taking too much time.

REID: Yes. Now, I think that a lot of those feelings come specifically about the cases related to Former President Trump. And I do think that history will continue to debate whether Merrick Garland should have moved faster, because to your point where they're not going to hear the question of whether Former President Trump has immunity for his January 6th case until next Thursday.

We don't expect a decision there until late June, which means the earliest that case can go if they don't send it back down to the lower courts for further proceedings, it's probably August. We're getting pretty close to the election, and it's really unclear if that case is going to go. And that is in part to because of the Supreme Court opting not to take this up months ago when Jack Smith asked them to. Instead, letting it go through the appeals court and then putting it on the docket.

So, the timing, the slow walking, the role that the Justice Department and the Supreme Court have had in these cases, this is something that is historic. It will be studied, especially we don't know how the story ends. It will be studied for decades to come.

ACOSTA: Absolutely. And Shan, I mean, just like this case, the immunity question is something that the Supreme Court could have said, oh, no. We're not taking that up.

WU: Oh, absolutely. I mean, there's a very strong case for them just letting it stand because the D.C. Circuit did a very thorough opinion. I mean, it seems to me it's a bit of an ego issue, that they felt they really had to weigh in on it because it's historic. But legally, there was not a reason to do that. And the court, historically, has tried not to exercise this jurisdiction when it doesn't have to and it didn't have to do that here.

ACOSTA: Yes.

REID: Unless they want to send it back down --

WU: Correct.

REID: -- which is what I'm told by sources close to the case. There's a thought that maybe that they want to send it back down for further proceedings on a more narrow definition of immunity.

[11:00:00]