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Legal View with Ashleigh Banfield
President's Appointment Power; Abortion Buffer Zones; Police Find Missing Boy in Basement
Aired June 26, 2014 - 12:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
JOHN BERMAN, CNN ANCHOR: Please watch or set your DVR. It's a great episode tonight.
MICHAELA PEREIRA, CNN ANCHOR: I think we end with that, don't you think, John.
BERMAN: Absolutely.
PEREIRA: That's it for us AT THIS HOUR. I'm Michaela Pereira.
BERMAN: I'm John Berman. "Legal View" with Ashleigh Banfield starts right now.
(BEGIN VIDEO CLIP)
NANCY GRACE, HLN: Yes, we are getting reports that your son has been found alive in your basement.
CHARLES BOTHUELL IV, FATHER OF MISSING BOY: What?
(END VIDEO CLIP)
ASHLEIGH BANFIELD, CNN ANCHOR: A strange and stunning end to a Michigan missing child case. Nancy Grace joins us live this hour on CNN to help us get a handle on this one.
And also ahead, missing without a trace for 111 days, but Flight 370 suddenly back in the headlines today. A new direction and a new hope in the painstaking search for that plane.
And piecing together Cooper Harris's final hours. Each new detail more disturbing than the last. Why did his dad leave him to die in a sweltering hot car?
Hello, everyone, I'm Ashleigh Banfield. And it is Thursday, June the 26th. Welcome to LEGAL VIEW. We'll have those stories straight ahead.
But first, legal news that doesn't get bigger than this. It's SCOTUS Day, folks, and the breaking news that barely a day after the House speaker, John Boehner, said he's suing the president for pushing the limits of his executive authority, the Supreme Court just broadsided the president too, calling his recess appointments that were made recently that sidestepped the Senate unconstitutional. So is this piling on the president or is this just the system at work? Republican Senator Chuck Grassley says the ruling should give voters confidence that checks and balances in this country really work.
(BEGIN VIDEO CLIP)
SEN. CHUCK GRASSLEY ()R, IOWA: These illegal appointments represent just one of the many important areas where President Obama has disregarded the laws with his philosophy of the ends justifying the means. We should all be thankful then that the Supreme Court has reigned in this kind of lawlessness on the part of this administration.
(END VIDEO CLIP)
BANFIELD: Lawlessness. That is tough, tough wording. Joining me to talk about the impact of this ruling is CNN White House correspondent Michelle Kosinski, as well CNN legal analyst Jeffrey Toobin, who's been reading through it and is reading through it as we speak, and also our Justice correspondent Pamela Brown.
Jeff Toobin, if I can interrupt you for just a moment.
JEFFREY TOOBIN, CNN LEGAL ANALYST: Oh, I'm - you know, it's just like there's something on another station I'm interested in. That's OK. No.
BANFIELD: No, it is not World Cup this hour, that's all I'm saying.
TOOBIN: No, it's - no, I'm sorry. There's no score yet. Just keep me up to date. Yes.
BANFIELD: So here - yes, there is a big score.
TOOBIN: How can I help?
BANFIELD: It just happens to be coming from where you're sitting. And if it - you might want to --
TOOBIN: I'm just having a little -- having a little fun here.
BANFIELD: I'm sure you are. You kind of want to chalk this up for the Republicans because this is a big score in their favor today. You know, for those who are joining us and aren't really clear on what the recess appointments are or what the significance of it is and really what the Supreme Court told the president he can and can't do, button it up for me.
TOOBIN: The Constitution gives the power to the president to make appointments around Congress when Congress is not in session. In this period of gridlock, the Senate has come up with these sort of fake recesses which allow the president to -- which have allowed the president to make appointments.
What the Supreme Court said today is, we're not buying these fake recesses anymore. You want to have a recess, it's got to be a real recess. And the significant part of today's ruling is that the Republicans can basically stop a recess. So, yes, in theory, the president can continue to make recess appointments, but in the real world, as the result of today's decision, President Obama is not going to be able to probably make any recess appointments. So he has lost a very important part of his power to keep the government going the way he wants it going.
BANFIELD: And we, the people, have gained one whole big bucket load of I think what we call gridlock?
TOOBIN: Gridlock.
BANFIELD: Michelle Kosinski, take me to the White House. I'm sure this is not the most welcome news.
MICHELLE KOSINSKI, CNN WHITE HOUSE CORRESPONDENT: Yes, we're just hearing from the White House on this now. They're saying that they are deeply disappointed, still reviewing the decision, but, of course, they say they will honor it. We're waiting for more detail later on.
I think what was really interesting, when you read the opinion on this, the justices even spell out that they want to be careful not to mess with this traditional kind of compromise that has started because of recess appointments. I mean it came up during oral arguments that both sides have used this to get people past the opposition and into positions really since our country began. And it's kind of reached an understanding, in a way, maybe until now, between both sides that you make these appointments, OK, and then the next president does the same.
But the justices said, there's not a problem with recess appointments. There's not a problem with the pro forma sessions that the Senate did. You know, they were in recess, but then they kept the Senate going every three days, not discussing business but essentially doing that to prevent recess appointments. The justices didn't have a problem with that either.
What they had a problem with, they said, was the short time frame. It was less than 10 days, they said, and that wasn't enough time for the Senate to truly be in recess for the president to make those appointments.
BANFIELD: OK.
KOSINSKI: So that's how they say that he overstepped his constitutional authority.
BANFIELD: This is - this is Jeffrey Toobin's dream come true. It's SCOTUS decision season. So we have another one that we want to talk about as well. The court handing down a key free speech case this morning. It strikes down that Massachusetts law that restricted discussions, so to speak, protesting if you want to say it, about abortion on the public sidewalks 35 feet within a buffer of an abortion clinic entrance.
So, Pamela Brown, this is a unanimous opinion, which might surprise some. And although it's really not about abortion, it's about free speech, take me inside the opinion.
PAMELA BROWN, CNN JUSTICE CORRESPONDENT: Yes, that's right. It's a unanimous ruling, but it's also a narrow ruling, Ashleigh. Essentially, the justices today saying that the commonwealth of Massachusetts, the law that the commonwealth has requiring 35 feet buffer zones outside of reproductive clinics that provide abortion are unconstitutional, saying that it violates the free speech rights of the anti-abortion protesters.
Now, important to note here because the state of Massachusetts said the whole reason they have these 35-feet buffer zones outside the health clinics is to protect the safety of the patients because in the past, in the commonwealth, there have been violence outside of these reproductive clinics. So the state said, look, this was a compromise. However, the justices said, look, it's too expansive, it's too big, but you can still go back to the drawing board and protect your patients and have perhaps a less restrictive, less expansive buffer zone.
And important to note here, Ashleigh, as I said, this is a narrow ruling. This is just in the commonwealth of Massachusetts. And there are only a handful of state in the U.S. that have buffer zones this expansive. Montana, Florida, California, just to name a few. So it's not going to have a huge, wide ranging effect in that - in that way.
BANFIELD: All right, Pamela Brown, thank you.
I know you all want to get off and watch World Cup, but I'm going to leave you on the hook because we still have Hobby Lobby and that means you, Jeffrey Toobin, likely next week, which is the -
TOOBIN: Monday.
BANFIELD: The exception. Yes, Monday - Monday or Tuesday? Monday?
TOOBIN: Monday.
BANFIELD: The exception to the contraception mandate in Obamacare for religious companies. So I'm waiting to find out what happens on that one. So you'll all be back. Thank you all. Appreciate it.
TOOBIN: Can I say one thing?
BANFIELD: Quickly, yes.
TOOBIN: Go U.S. No score yet.
BANFIELD: I knew it. I knew it. OK, back to your - back to your whatever it is you're watching.
TOOBIN: (INAUDIBLE) soccer.
BANFIELD: That thing I'm not allowed to watch because I'm working.
TOOBIN: You are.
BANFIELD: Jeffrey Toobin, Michelle Kosinski and - I know Michelle's got her laptop up on it too -- Pamela Brown. Thank you all. They're amazing how they multitask. All right, so we're going to continue on with a number of other
stories that we're following here on CNN today. And this one, the amazing conclusion to the search for a boy who was reported missing for 11 days. HLN's Nancy Grace breaks the news to his father on live television as to his whereabouts.
(BEGIN VIDEO CLIP)
NANCY GRACE, HLN: Yes, we are getting reports that your son has been found alive in your basement.
CHARLES BOTHUELL IV, FATHER OF MISSING BOY: What?
(END VIDEO CLIP)
BANFIELD: Yes, what? You're not kidding. An incredible moment. Nancy Grace is going to join me just after the break to talk about this and also what's going on? What are the police doing about this? That's coming up next.
(COMMERCIAL BREAK)
BANFIELD: TV moments like the one that you are about to see are rare. The once in a lifetime opportunity that a host gets to tell a father that his son, who's been missing for 11 days, has been found alive. But there's more to this. It's where that child was found. And his father's reaction. And that's what makes this story about as puzzling as it gets. Police found this little boy, 12-year-old Charlie Bothuell barricaded in his dad's basement. His father, Charles, just happened to be on Nancy Grace, on our sister network HLN, the very moment that he heard that news from Nancy for the first time.
(BEGIN VIDEO CLIP)
NANCY GRACE, HLN: Charlie, we're getting reports that your son has been found in your basement. Sir? Mr. Bothuell, are you - are you -
CHARLES BOTHUELL IV, FATHER OF MISSING BOY: What?
GRACE: Yes. We are getting reports that your son has been found alive in your basement.
BOTHUELL: What?
GRACE: Yes. That's what - if you could hand me that wire very quickly. Yes, we're getting that right now from - from - yes, how could your son be alive in your basement?
BOTHUELL: Ah - ah - (EXPLETIVE DELETED). I have - I have no idea.
GRACE: Now, this is just a report that we are hearing out of Detroit that we're trying to confirm.
BOTHUELL: Yes, please -
GRACE: Everybody in New York please get on it. Let me know when we get Charlie Langton from WWJ.
Sir, did you check your basement?
BOTHUELL: I checked my basement. The FBI checked my basement. The Detroit Police checked my basement. My wife checked my basement. I've been down there several times. We've all been checking. I - my --
GRACE: OK, this -- this is what we - -we are hearing that the missing 12-year-old boy has been found alive and well in his father's basement. Now this is what - I don't understand why you guys would have reported he's missing and all our viewers have been on the lookout for him.
BOTHUELL: He's been missing for 11 days. We've been - we've been on the lookout for him. We searched that entire house repeatedly. The FBI searched. The Detroit Police searched. We've all searched. God, they brought dogs. Everything. Everybody has searched. What - oh, God, my son.
GRACE: Have you checked your cell phone?
BOTHUELL: My cell phone is dead. I - and I actually, getting down here, I left it in the car charging because it had - it had - oh, man, it died on me. Oh, God.
GRACE: And you're telling us that you searched your basement and your wife searched your basement?
BOTHUELL: I searched my basement. My wife searched my basement. The FBI searched my basement. The Detroit Police searched my basement. We all searched my basement multiple times. I mean we -- yes. They had the dogs search. We've all searched the basement. The dogs searched my basement. Oh, God.
GRACE: OK. Well, you know what, I'm going to give you a chance to call home and see what you can find out. Charlie Langton, WWJ News.
Charlie, we're getting reports tonight that the boy has been found alive in daddy's basement.
CHARLIE LANGTON, WWJ NEWS: Yes. Yes. He was just - we're just getting word right now and we've just basically confirmed that, yes, the boy has been found alive in the father's basement. And we're just getting reports right now that that is true. And literally it just brake - broke moments ago.
Now why the boy -- what father didn't know about that for the last 11 days, if the child was afraid, if there was any conclusion amongst anyone with the child, all those are questions that we're trying to get reports right now.
We understand that -- we're sending news crews right now to the scene. We're also understanding that the police chief is going to make an announcement. That should be coming up a bit later on.
But, yes, the boy has been found alive in his father's basement. (END VIDEO CLIP)
BANFIELD: Bizarre to say the least.
Charlie was hidden behind boxes and a large five-gallon drum. He had with him some cereal and some soda. Police tells them other evidence they found in the home tells that something was, quote, "afoul," their words. A PVC pipe and bloody clothing was found.
A family attorney told CNN that he's been trying to contact the dad this morning but so far hasn't found him.
I want to bring in Nancy Grace, the host of HLN's "NANCY GRACE," a former prosecutor herself and the person who was behind that remarkable TV moment.
Ms. Grace, thank you for being on the show. It's great to talk to you. I just want to get your take on all of this. Something seems so odd.
GRACE (via telephone): Yes, and I tell you this, and you know this as well from covering so many cases.
When things don't add up, there's a reason for that. When it doesn't feel right, when it doesn't fit, it seems odd, that's because the facts are not as they appear.
And more about what was found in the home, I don't believe the boy had been staying in the basement the entire time, which begs the question, why was he gone away from home for nearly two weeks?
The reason I say this, yes, there was some food down there with Cheerios and soda, but not enough to live off two weeks. Also, there was no bathroom there, and there was no evidence he had been using the bathroom in the basement.
It's kind of a very small area where he was. Now we've also been told that there was a connecting hallway of sorts between the basement of these connecting townhomes. Was he using that to get in and out?
We also haven't been able to nail down how many keys to the home were missing. Did he have a key to the home?
There are certainly suspicious things about this. Why were there bloody clothes? Why was there the PVC pipe, and why are cops making a point of saying they found PVC pipe?
We know the boy was homeschooled at home by the father, and the mother lived close by. The last time that the little boy left the home, he was only gone for a few hours and he was near his mother's home. He's not typically a runaway.
BANFIELD: So as a prosecutor, I know one of the things you would often look for is demeanor. It's one of the intangibles. It's not sort of matched up with the hard evidence that the police are bringing into the case right now, but it's nonetheless very important. And I just want to get your take on the demeanor of Mr. Bothuell when you broke the news to him and did you read anything into his reaction and the subsequent reaction upon arriving home to see the police giving a news conference at his front -- at the front of his house?
GRACE (via telephone): This is what I observed when he got out of my -- got out of our studio. He was crying. He wanted to see his son. He was hugging the reporters, he genuinely seemed happy that his son had been found. He kept saying, I love my son.
On the other hand, he would not take a local police polygraph. He took an FBI polygraph, and it was inconclusive. The stepmother would not take any polygraph, although they now say the FBI never asked her to.
I know this too. I know police had searched the basement themselves. I know the FBI had searched the basement themselves. I know cadaver dogs had gone down there. They didn't find the child other. As to this barricade, apparently not only was it boxes and a drum, a five-gallon drum, but also a dresser. They say that a child could not have formed that barricade.
So what's the answer? I know the child had been medically examined and they find no injuries, no obvious injuries, to the child.
BANFIELD: It is just bizarre. There's no other way to --
GRACE (via telephone): How can you have a kid in your basement for two weeks and you don't know about it?
BANFIELD: How can dogs miss it as well?
Nancy, always great to hear from you. Thanks so much for taking the time.
GRACE (via telephone): Likewise.
BANFIELD: Nancy Grace, reporting for us live.
And, by the way, be sure to tune in to Nancy's program. She's on 8:00, HLN, tonight, and clearly will have a lot more on this story as she continues with her investigative stuff to look into this story.
And, once that father, by the way, of that once-missing boy left Nancy's studio and left that interview, he went straight home, and what was waiting for him? A bunch of reporters at a police press conference.
Have a look.
(BEGIN VIDEO CLIP)
BOTHUELL: For anybody to imply that I someone knew my son was in the basement, it's absurd and it's wrong. I love my son.
(END VIDEO CLIP)
BANFIELD: That's what he says, and we have a lot more of his words as well the range of emotions.
And then one curious question. Why did the police have a warrant to go into his house? Wasn't that free access if they were looking for the police help? Going to answer that question in a moment.
(COMMERCIAL BREAK)
BOTHUELL: As if the case of the missing 12-year-old boy from Detroit couldn't get more bizarre, after his dad's interview with Nancy Grace on HLN, and while the Detroit police chief was updating reporters on the case, that camera swings over and the dad shows up at this news conference, rushing from Nancy Grace's interview to the front of his family home.
And then he got really defensive over some of the questions that started coming from the press corps.
(BEGIN VIDEO CLIP)
BOTHUELL: So any intimation that I knew that he was in there is absurd. Literally, I couldn't find him. If the FBI couldn't find him and the Detroit police could find him, for anybody to intimate -- they did, finally, yeah. They have been living in my house for the last 10, 11 days.
UNIDENTIFIED FEMALE: Have you looked in the basement?
BOTHUELL: We've looked in my based. I looked in my basement. They looked. They went down there with search dogs. My wife looked.
UNIDENTIFIED MALE: When was the last time you looked for your son down there?
BOTHUELL: The last time I looked for my son down there was a few days ago before the FBI did, before they came with the dogs.
No, I've been in the basement, but --
UNIDENTIFIED FEMALE: Has he ever hidden in the basement before? Has he ever hidden down there before?
BOTHUELL: No, he hasn't.
UNIDENTIFIED FEMALE: We heard that your ex-wife may have been hiding him down there from you and feeding him.
BOTHUELL: That's absurd. And my ex-wife did not take off. The FBI and task force was here executing a search warrant. They forced my wife to leave.
I was here. You guys were here. They said we could not be in the house while the search was being executed. That was a decision of law enforcement, not the decision of my wife.
UNIDENTIFIED FEMALE: How surprised you that he was found in the basement? BOTHUELL: I'm shocked because I looked. Like I said, the Detroit
police looked. The FBI looked. Repeatedly. Been through here.
They have been in my house until 3:00 in the morning on occasions and all night when the lieutenant kept me and my family at the police station from 10:00 p.m. to 6:00 a.m. The Detroit police and the task force were here all night executing search warrants.
So to say that -- for anybody to imply that I somehow knew my son was in the basement is absurd and it's wrong.
I love my son. I'm glad he's home and he's going to have a great future that he deserves to have.
UNIDENTIFIED MALE: When we talked to you earlier today, there was deeper concern perhaps about a homicide.
BOTHUELL: Yeah, man, you broke my heart with that, man.
UNIDENTIFIED MALE: Tell me about your range of emotions based on what the police were telling you.
BOTHUELL: I thought my son was dead, man.
UNIDENTIFIED FEMALE: Have you seen your son yet?
BOTHUELL: No, I haven't.
UNIDENTIFIED MALE: Do you know where he is?
BOTHUELL: No, I don't. No, I don't. My wife, they wouldn't even let her in the house, but I want to see my son.
(END VIDEO CLIP)
BANFIELD: OK, that is exactly the reaction, gentlemen, that Nancy was talking about.
This is HLN legal analyst and criminal defense attorney Joey Jackson on the left, on the right CNN legal analyst Paul Callan, criminal defense attorney, former prosecutor. And both of them teach this stuff.
OK, Joey, I'm going to begin with you. I see that reaction. I feel it's entirely different than the reaction on live television with Nancy Grace.
But at the same time, there's a smell test that's not matching up here.
JOEY JACKSON, HLN LEGAL ANALYST: You nothing about this makes sense. And you have to believe, or you want to think, it may be contrived a bit, but I would caution you this, Ashleigh.
It's very difficult to make assessments based upon someone's reaction. Why? Because we all behave differently and we react differently to crisis, to anxiety, to stress.
And, so, I wouldn't say, Ashleigh, just predicated upon his reaction, there's anything guilty about it. Right? There will be experts who may be called to testify as to that issue, but there are other things that we could get into that seem a bit odd, a bit strange, a bit ominous.
BANFIELD: I'm going to get into those other things right now.
JACKSON: I bet you are.
BANFIELD: I've got some breaking news that I just want to bring to our viewers. I'm getting this as I speak, and, Paul, I'm just going to get you to weigh in on this.
Apparently that little boy, Charlie, is still in police custody. We heard the dad being asked, you know where he is? He said no, but he wants to see him.
They have not yet questioned him. Police have not yet questioned the 12-year-old about what happened to him. They say, quote, "We want to make sure he gets a proper -- that we want to make sure he gets proper psychological services first."
They are waiting for child services to arrive and help the boy, now that he's been released from the hospital with a clean bill of health.
Much of this is coming to us courtesy of our Susan Candiotti who has been working this story and her sources.
And I'll tell you something else, which is pretty remarkable. They said something in particular led the police to the basement and, Paul Callan, that has been bothering me since the beginning of this story.
Why if a family has a missing child does a police force need a warrant to get into the home? Because, effectively, aren't they on the same team? Shouldn't they be invited in every day?
PAUL CALLAN, CNN LEGAL ANALYST: That's a great question. And normally the parent will say to the cops, hey, come in, do whatever you have to do. Dig a hole in my basement if you have to.
BANFIELD: Yeah, tear it apart.
CALLAN: And, once you have the permission to search, you don't need a search warrant.
So I have been scratching my head trying to figure out why they got a warrant. And as I look at this, I see you've got the father, you've got a stepmother in place, and you have an ex-wife in place.
The police probably are not sure who has the right to grant full permission for a search, and they're afraid that if they dig up evidence relating to the stepmother or the ex-wife, there'll be a claim that it was an illegal search.
