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Cuomo Prime Time

Six GOP Senators Join Democrats, Vote Trial Is Constitutional; Sources: Trump Unhappy With Defense Team's Debut At Trial; Accused Rioters Blame Trump For Attack On Capitol. Aired 9-10p ET

Aired February 09, 2021 - 21:00   ET

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

ANDERSON COOPER, CNN HOST: Let's hand it over to Chris for "CUOMO PRIME TIME". Chris?

[21:00:00]

CHRIS CUOMO, CNN HOST: You will be on at 11. And I will be on from 12 to 2, in addition to our shows tonight, because this is history, and it matters. Anderson, I'll see you in a second.

I am Chris Cuomo. Welcome to the first installment of PRIME TIME.

13 minutes, that's all that really should have resonated with senators today. 13 minutes was the duration of the video compilation of the events of January 6th, one of the worst days in American history, and Trump was all over it. And what was wrong about all of it was obvious.

The hats, the faux flags being used as battering rams and, most of all, the anger, anger and animus, against our country's laws, that led to an insurrection, attacking our democracy. That is the story of January 6, and it is one that may not be given an ending in the trial that we're watching.

Other than the presentation of the horrifying reality that brought these senators together today, this day, today, was a farce. After all, there's only one reason this trial is being held after Trump's defeat. And that reason is Senator Mitch McConnell.

McConnell asked to kick the trial until after Trump was out of office. This is a fact. He never said he was doing that because they had to consider whether or not it is proper to try a president so late in the game. That is a fact.

He said he wanted to give the trial the time it deserved. He lied. He voted to say it was unconstitutional. He didn't know that then? It was another bait and switch. Democrats, how many times will you pet the snake?

The law here is clear. The Constitution provides a no-conditional nature to the Senate's duty. OK? "The Senate shall have the sole power to try all impeachments." That's it. There are no ifs. There is no other language. So what do you do? You follow the law.

Where are the originalists? Josh Hawley? The inimitable Ted Cruz? His own former Legal Adviser says the Senator is wrong about this. And it's not just that he's wrong. He's just not being honest.

And this was not lost on the Lead House Manager, Jamie Raskin.

(BEGIN VIDEO CLIP)

REP. JAMIE RASKIN (D-MD): All means all, and there are no exceptions to the rule.

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CUOMO: That's it. It's all you ever hear from the Right about the Constitution, right? "If it's not in there, it's not in there." It's not in there.

In fact, there's no rule that even allows the Senate to do what it did today. I don't know why the Democrats allowed this, this "Let's debate if we need to do our job."

It was another chance though, here was the value in this whole process, you got to see how even in the face of such clear proof of what is right, there are so many willing, in their number, to do what they know, is wrong.

I was frankly shocked that only one more Republican joined the 55 other jurors in the vote to proceed, Senator Cassidy of Louisiana, Republican, changed to a "Yes," after last week, and explained why.

(BEGIN VIDEO CLIP)

SEN. BILL CASSIDY (R-LA): If you listen to it, it speaks for itself. It was disorganized, random, had nothing. They talked about many things but they didn't talk about the issue at hand.

The House Managers made a compelling cogent case. And the President's team did not.

(END VIDEO CLIP)

CUOMO: That should have been obvious to everyone in the room, but only one had the integrity to say or do something about it, on the Republican side.

Day one of the Trump trial, a phrase you may get used to, Trump trial, because there may be several to come, this day certainly saw Trump get the defense he deserves. It was pathetic! Other key GOP jurors like Murkowski and Cornyn are panning the defense.

I argue Trump's own lawyer made the best point of the day, and I'll tell you about it in a second. But to be clear about what mattered, Trump's guys don't have the law or the facts on their side. Those are both damning. Their advantage is they have the jury rigged in their favor.

But be clear about what is before your eyes right now, and what we must never forget. It is a day that will live in infamy. January 6th is an insurmountable obstacle. House Managers showed the first of many pieces of video evidence, recounting that day.

[21:05:00]

Trump's words on the 6th spliced with the mob's response to the same, and a reminder in between clips that seven lives were lost, including a Capitol Police officer and two other officers, who took their own lives, after that day, more than 140, in law enforcement, injured.

The video ends with Trump's tweet siding with the insurrectionists more than four hours after the Capitol was breached.

"These are the things and events that happen when a sacred landslide election is so unceremoniously & viciously stripped away from great patriots."

Imagine if Putin said it, how angry they would be? A lie, a lie that Trump told exclusively for his own advantage, and to make people angry. And you know who made that case best today? Trump's own lawyer.

(BEGIN VIDEO CLIP)

BRUCE CASTOR, TRUMP DEFENSE LAWYER: The American people just spoke. And they just changed administrations.

The people are smart enough, in the light most favorable to them, they're smart enough to pick a new administration, if they don't like the old one. And they just did.

(END VIDEO CLIP)

CUOMO: Mr. President, former president, your own lawyer says you're lying.

That's defense attorney Bruce Castor, saying "The people just spoke. They're smart enough. And Biden won. They changed administrations." The irony that these senators sit there, and look forward to acquitting a man, whose own lawyer admits he was lying!

I'll tell you what. You know what else he did, Mr. Castor? He invited a future Trump indictment. Listen to this.

(BEGIN VIDEO CLIP)

CASTOR: If my colleagues, on this side of the chamber, actually think that President Trump committed a criminal offense, and let's understand, a high crime is a felony, and a misdemeanor is a misdemeanor, the words haven't changed that much over the time, after he's out of office, you go and arrest him.

(END VIDEO CLIP)

CUOMO: Now, we're going to talk about the possibility of that.

And, by the way, he's making an argument but he knows it's not accurate. If you go back and look at the history of why they picked high crimes and misdemeanors, they were adopting a common law principle from the English.

It wasn't about actual crimes. It was about their way of just not making it subjective. They didn't like that they chopped the head off the king, when they didn't like how he did his job over there. So, they wanted some standard. And they came up with a common law standard.

It's not about felonies and misdemeanors. It's about abuse of office. Period! And he should know that, but he's arguing a point. And, by the way, that was the high point for Trump.

Things went worse from there when the other Trump lawyer David Schoen took over. Listen.

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DAVID SCHOEN, TRUMP DEFENSE LAWYER: This trial will tear this country apart, perhaps like we have only seen once before in our history.

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CUOMO: So, here's what they're saying. "Don't hold Trump to account for encouraging an insurrection, because that may lead to another." I wonder by whom?

Look, fear of Trump is a sham. Fealty to Trump is our challenge. How can so many senators still put Trump above accountability, above the law, especially when they were all witnesses to and potential victims of the insurrection?

Think about it. When do you see a jury full of witnesses? A Head Prosecutor of a trial recounting his own ordeal as a victim in the same case?

Here's Jamie Raskin.

(BEGIN VIDEO CLIP)

RASKIN: All around me, people were calling their wives, and their husbands, their loved ones, to say goodbye.

And then there was a sound I will never forget. The sound of pounding on the door like a battering ram, the most haunting sound I ever heard.

The kids hiding under the desk, placing what they thought were their final texts, and whispered phone calls to say their goodbyes. They thought they were going to die.

And I told my daughter Tabitha, I told her how sorry I was. And I promised her that it would not be like this again, the next time she came back to the Capitol with me. And you know what she said? She said, "Dad, I don't want to come back to the Capitol."

(END VIDEO CLIP)

CUOMO: We all know that this was a massacre in the making. And we got lucky.

[21:10:00]

Now they have to think about this. The senators, on the Right side of the aisle, are thinking about protecting the man, who sent an angry mob to find them. How much of your Party and yourselves can you give away before there is nothing left worth keeping?

Today was about how clear the law is here. Tomorrow, the facts will be an even more powerful demonstration of the obvious. Will senators really give Trump a pass on his responsibility for one of the worst days in American history that could have cost them their lives?

Let's bring in the better minds, Preet Bharara, and Michael Smerconish.

Preet, people are talking about somewhat of ineptness of counsel, on behalf of the President's defense. But how good a case do you need to have when the jury is in your pocket?

PREET BHARARA, FORMER U.S. ATTORNEY, SOUTHERN DISTRICT OF NEW YORK, CNN SENIOR LEGAL ANALYST: Well, that's the big question, right?

And I want to say, I'm a lawyer, and I practice, and I've tried cases, and I've overseen significant trials. And I've been on the phone all day back-and-forth, emailing and texting with colleagues and former colleagues of mine, about the lawyers' performance. And I've seen people on television talking about it.

And I think we should just be clear that we should not let the ineptitude and the conduct of the lawyers overshadow the conduct of the President here. Because the conduct of the President, as you have been outlining--

CUOMO: Good point!

BHARARA: --I think very, very eloquently, during this whole time, at the beginning of the show, that's what, what matters here. At the end of the day, though, it's the jury that counts.

And a jury that voted the way they voted, notwithstanding how clear the law is, how much consensus there is on one side of the constitutional question, they nonetheless, almost on a party-line vote, voted against the trial going forward doesn't bode well for how it's going to turn out at the end.

So, at the end of the day, I think the public will be educated as to the conduct of the President. And lots of people in the public may have their minds changed because of the excellence of the performance by the House Managers.

But if what Trump really cares about is only not being convicted, I think the good money is on that.

CUOMO: Anything make you feel differently today, Michael, than how you came into it? MICHAEL SMERCONISH, CNN ANCHOR: No, and I think that today prove that the arguments just don't matter.

I think you put your finger on something a moment ago, Chris, when you said that it's not going to get easier for President Trump's defense, because today was the easier day.

Today was the day, and I know you don't buy into this, but today was the day that they could have wrapped themselves in the removal language of the Constitution, that they could have wrapped themselves in the credibility of Bruce Ackerman from Yale, or Judge Michael Luttig. And they did none of that.

I love the expression "Slow-burn." And I can only imagine that Ted Cruz, Princeton undergrad, Harvard Law School, Alan Dershowitz says one of his most brilliant students ever, was doing a slow-burn, watching that today, thinking "My God, I could be doing a hell of a lot better if they'd give me the opportunity to argue the constitutional issue."

CUOMO: I don't know. When he got his chance, he stood up and said, "The proof is the polls that the election was stolen," so he didn't exactly wow us when he got his chance.

Preet, there was a suggestion made today by Counsel that we've been hearing more now echoed on the Right. "If you think Trump is responsible, just arrest him, and hold him to account now that he's not president anymore."

Now, it's not crystal clear, then that can happen. We've seen only mostly civil litigation, involving former presidents, for events, during their presidency. But do you think that's a legitimate option here that if the Senate takes a pass, acquits him, that he could be arrested and prosecuted?

BHARARA: Yes, look, I think on any one of a number of issues, the President is in jeopardy. He's in jeopardy out of the Manhattan D.A.'s office with Cy Vance looking at various improprieties, relating to his taxes and representations he's made to financial institutions.

There are people, who are potentially taking a look at the other action, some of which makes up the conduct of the article of impeachment, interfering with the results in the Georgia election. We know that the state attorney - that the D.C. Attorney General is taking a look at things.

And obviously, we don't have a new Attorney General yet. We don't know what kind of process he, Merrick Garland will set up, if he's confirmed. But there are all manner of things that the just - that the Justice Department can look at. And as President Biden has said, he won't be directing those things.

So, he's in a certain amount of jeopardy, no matter what. And I also think it's the case that there's other things that the President may have done. We're finding out revelations all the time, from people who now feel comfortable enough coming forward. So, I think there's Jeopardy based on things we know. I think there's property - probably jeopardy based on things we don't yet know.

But none of that excuses this Congress and the senators, Republican and Democratic, from undertaking their responsibility, and not passing the buck, or kicking the can down the road--

CUOMO: Right.

BHARARA: --to some future hypothetical prosecution.

CUOMO: So Michael, last word to you.

[21:15:00]

You're a Republican Senator, sitting and listening to what's going to happen over the next couple of days. What do you have to believe in order to ignore what is going to be so obvious about January 6th, how bad it could have been and why it happened?

SMERCONISH: Well, the way that you expressed it, at the outset saying that they're somehow loyal to Trump, I don't think this is about loyalty to Trump. I think it's all about self-preservation.

I don't think they give a damn about Donald Trump. I've said to you before, if this were a secret ballot, he'd be gone with 80 percent of the votes. It's all about how they interpret the base reaction to this.

And in those votes today, notwithstanding Senator Cassidy, they showed us they've got resolve to continue to toe the line, because they're fearful of that base. That's, I think, how it ends barring the unforeseen.

CUOMO: Preet Bharara, Michael Smerconish, thank you for giving us your thoughts on this historic first day of the impeachment trial of Donald Trump.

So, the Managers, by the way, they're the prosecutors, OK? Members of the House become what they call House Managers, they're prosecutors. They remain undecided on witnesses. Now this is a very interesting issue. Why?

You're about to hear from two tonight. One is a juror at this trial, because remember, almost all of them are witnesses to the events of January 6. The other is the former Head Prosecutor of Trump trial number one.

What did they make of this day? What do they think should happen next?

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TEXT: CUOMO PRIME TIME.

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[21:20:00]

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TEXT: LET'S GET AFTER IT.

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CUOMO: The big decision to watch in this trial is whether or not House Impeachment Managers will call witnesses. They're in a unique position, if you think about it.

Nearly every "Juror" and I keep doing this, because they're not impartial. Mitch McConnell told you that right? "I'm not impartial." These are politicians thinking about what it will take to overcome their own self-interest. That's what it is. I wish it weren't. That's what it is.

But nearly every one of them still was an eyewitness to the horror of January 6, and the days leading up to it. So, let's talk about the value that witnesses could bring to their case, and where things stand, after day one.

Democratic Congressman Adam Schiff, the Lead Manager in Trump's first impeachment trial joins us now. Good to see you, Sir.

REP. ADAM SCHIFF (D-CA): Good to see you.

CUOMO: It is January 6. And when you think about it, which moment comes to mind first, for you?

SCHIFF: I think the moment that Jamie Raskin so powerfully talked about today.

And that is I was on the House floor with Jamie, and listening to these insurrectionists battering the doors, breaking the glass, to get into the chamber. It is an unforgettable and terrifying sound, and one that none of us that experienced it will ever forget.

CUOMO: What were you afraid of happening if they made it into the room with you there?

SCHIFF: Well, I had a number of Members, including Republican Members, tell me "They can't see you. Don't let them see you. You're in a different situation."

And so, I felt like I was a marked man, and who knows what would happen if they were able to breach that chamber, and if those Capitol Police hadn't acted so heroically.

So, it obviously could have been much, much worse. And as it was, it was just awful, with five people dead, and the citadel of our democracy so horribly defaced.

CUOMO: So, to feel what you did, in that moment, and then to live, the perfidy of watching so many Members of your House, stand up to decertify the election, which was really just a nod to the insurrection, and now to see what's happening in this trial, how do you make sense of it?

SCHIFF: Well, it's hard to make sense of. And as those events were going on, in the House chamber, and - and my House colleagues, in the GOP, picked up right where they left off, after that failed insurrection, were still trying to overturn the results of the election.

Those Members, unlike a lot of that mob, those Members on that House floor knew that what the President had been pushing out was lies. They had helped push out the same lies. And so, they had a great deal of culpability themselves.

Watching that 13-minute video presentation that the House put together, it couldn't be more obvious. This is the gravest constitutional crime in the history of our country.

And that we would have so many GOP senators, vote effectively to not hear the evidence, not proceed to trial, to have the Senate Leader say "I'm not going to begin the trial while the President is in office," and then vote to say "We can continue to trial now because the President is out of office," that is not consistent with constitutional duty, not in my view.

But that issue is now been voted on, the trial goes on. And I think the power of the case the Managers put on will only grow.

CUOMO: What do you think of witnesses? We've made a point on this show of bringing the lawyers on, for different people, who are accused of more serious crimes that day.

And they say to a man, "Look, this is what we needed to do. Trump made it very clear. We have to fight for this. This was being stolen from us. And they were in that place. And we had to go let them know, one way or another, "You're going to abide by what we think is right."

Would you put those people on to make that point? You're not going to get the loser of the election. He's not going to show his face. But would you put those people on?

SCHIFF: Well, I have every confidence Jamie Raskin will make that strategic decision and make it the right way.

But I can tell you what, he will be weighing or, at least, I think what he will be weighing, in that video, and I'm sure there's more where that came from that we'll see during the trial, you hear people in the crowd talking about why they're there, that they're there because the President told them to be there.

[21:25:00]

How much additional power does it add to bring in those lawyers, for example? And how much does it risk distracting from the rest of the case, because then the defense may want to bring in other witnesses to rebut them. That's the calculation that will need to be made.

But I would certainly expect that we are going to see, like we did today, powerful video of the President lying, in the weeks leading up to the election, lying about the election, marshaling people to assemble that day, on the 6th, intervening with state officials, intervening with that Secretary of State in Georgia, and audio from that tape recording, this President trying to cheat in every way leading to the final effort to steal this election on January 6th, that is really powerful stuff.

And I think the House Managers will make the decision, do they add to that power by bringing in live witnesses? Or do they diffuse it, by allowing defense witnesses to come in and rebut it? And I'm confident they'll make the right judgment.

CUOMO: I was just on the phone with my son. I said, "Make sure you're watching this show, because I hope you never see this again," where people who are 100 percent aware of what happened on January 6th, and why it happened, I mean, it's just it's not a subtle situation, that they are thinking of giving a pass to the President.

What do you want those men and women in the Senate to know?

SCHIFF: Well, I want them to know this. The job is just not that important. If the worry here is losing a primary election, there are worse things in the world.

And to me, a worst thing in the world is not to do your constitutional duty, to let down the country, to not fulfill your oath, to leave the chamber whenever we leave Congress, and regret that we didn't have the courage and the strength to do the right thing. That to me would be the worst outcome.

And I would also say, just as we worried during the first trial that if senators recognized he was guilty, and yet voted to acquit that it would recur, that he would cheat again.

If they don't disqualify this president, after committing the most egregious constitutional crime in history, and he runs again, we will fully have to expect he will cheat, he will lie, and he will incite again, and you put this country through hell, again.

They have the power to stop that. And they should use that power because it's consistent with their duty.

CUOMO: Their Party will never be the same, if that happens, may not be as it is.

Congressman Adam Schiff, thank God you're OK, a horrible thing for you to have to live through. And that goes for the 6th, and this. This cannot be easy for you to watch. Be well, and thank you.

SCHIFF: Thank you, Chris.

CUOMO: All right, now let's go inside the trial with a juror who again is a witness, Senator Amy Klobuchar. It's good to see you.

SEN. AMY KLOBUCHAR (D-MN): Thank you, Chris. It's great to be on again.

CUOMO: So help me understand how after what they saw and heard in that room today, just one of your Republican brothers and sisters in the Senate made the move to join the other five, and all the Democrats saying "Yes, we should hold this trial."

KLOBUCHAR: I don't know. I think they should come on your show to explain themselves, because to me, the Constitution speaks for itself.

And they've heard from some of the most conservative lawyers in the country, including the Republican lawyer of the year, Mr. Cooper, who has made it very clear that the Constitution would allow this trial to go forward.

That in fact, as Mr. Congressman Neguse did such a incredible job of explaining that when you go through history, the Secretary of War was impeached after he had left office. You look at the plain language of the Constitution.

So, to me, there is no, as Jamie Raskin explained, there is no January exemption in the Constitution. The Constitution doesn't say, "Oh, you know, you can't do bad stuff. But you know, that last month, you can do whatever you want when you go out the door."

I think Trevor Noah said it best when he said, "You know you can't get fired from Best Buy, and take a TV on your way out."

So, that was established today. Despite the votes of some of my colleagues, we did have six of them vote with us. So, for history's sake, Chris, we will always know that a trial like this can go forward because of the strong vote on that.

Now we go into tomorrow, and they're going to see more videos like the one today, videos we have not yet seen before, because they were police cameras, and the like from inside the Capitol. And to me, that was just chilling.

The flagpole with the American flag being used to ram through windows, and beat police officers, the Trump flags on full display, literally hitting people, being used to take on, and invade a co-equal branch of government, and we're going to see more of that tomorrow.

CUOMO: Never a good sign when a comedian seems to see the issue more clearly than the senators weighing it!

One quick procedural question, and then I have a question about your disposition going forward.

[21:30:00]

The procedural question is, why did today happen? It is not called for in the Constitution. It's not called for in the Senate procedural rules. Why did the Democrats let the Republicans question what their duty was in this situation?

KLOBUCHAR: Well, I think you're always going to have procedural motions, questions that could have been asked at various times of the trial.

And I certainly think, if you look at it, from a strategic position, Chris, and this was a bipartisan agreement, was very important to have that going forward, between Leader Schumer and Ranking Leader McConnell, so that was important.

But the other thing is, let's look at what happened today. The Republicans were vast the - to a tee criticizing President Trump's lawyers. And they were criticizing because they were bad.

But I don't think that we should lose focus on what really matters. There is no defense for the indefensible. It's not just about what the lawyers did today.

So, my point to you is strategically, we won today, in a big way. America won today, because we won that constitutional argument that was very clear, to get behind us, so we can go on to the facts of the case.

CUOMO: All right, well-argued. And here's the next thing. You think it's worth a suggestion--

KLOBUCHAR: Thank you.

CUOMO: --to the members of the jury, how many of us needed to die, if they had gotten their hands-on Schiff, god forbid, if they had found Nancy Pelosi, how many? Would you feel differently?

KLOBUCHAR: I don't know and I--

CUOMO: Would you hold the President to account if they had gotten her, if they had gotten him and her? How many?

KLOBUCHAR: I was actually thinking this today, as I sat there, how close we were, and how the Capitol Police, actually, so many of them incurring injury, they were able to get us to a secure location.

And the point is it was so close. They were literally at the doors. In the case of the House, they were ramming through the doors.

And the fact that there were some valiant people that stood up, and protected us, and incurred severe injuries, with one of them dying, two of them later taking their own lives, because they couldn't deal with it happened, look at that, Chris. I don't know why that's not enough evidence for them. But we are about to find out.

CUOMO: Senator, thank you very much. I appreciate it.

KLOBUCHAR: Thank you, Chris.

CUOMO: The situation is so painfully obvious that usually an unknown is absolutely known in this situation. Ordinarily, the people you want to hear from are the people who did the bad things. And usually you don't, because they support the person on trial.

Here, even the rioters say Trump incited the insurrection. And be clear, they're not going bad on him. They support him. That's how clear this is in their mind. They say they were there because the ex- president told them to fight, and they left when he said to leave.

You're about to hear the detailed explanation of one suspect seen spraying cops with a fire extinguisher at the Capitol, next.

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[21:35:00]

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TEXT: LET'S GET AFTER IT.

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CUOMO: I meant what I said. Tonight is a night for you to have your kids watch. I got my kids watching with my in-laws in one place. My other kid is in school, right, because we're all crazy with the schools, with my wife. They're all watching.

This should never happen again, where we are right now, where the obvious is being obfuscated, and for the worst of reasons.

The central question of this impeachment is why did Americans attack the U.S. Capitol? Trump's lawyers argue "The people who criminally breached the Capitol did so of their own accord and for their own reasons."

Yes. But what were those reasons? Every single case we've examined on this show, every attorney, representing someone charged in that riot, they all have the same obvious, ugly reason. "They were doing it for Trump."

Tonight, it's not about the legal defense of Matthew Ryan Miller. I think his case is obvious. And it doesn't interest me. Charges of attacking cops with a fire extinguisher are no joke. I'm saying litigating it doesn't interest me. I think it's obvious. We'll let the process work.

What does matter is what's happening in Trump's trial? Why did Miller do it? May not help him, but it could make the difference in this trial in terms of what is on the heart and soul and mind of those who decide to give him a pass.

Miller's attorney is Eduardo Balarezo.

Counselor, thank you for joining us.

EDUARDO BALAREZO, ATTORNEY FOR CAPITOL RIOT SUSPECT MATTHEW RYAN MILLER: Thank you for having Chris.

CUOMO: The President's Counsel is asserting "Your guy did what he did. It had nothing to do with the President." Response?

BALAREZO: Well, you have to understand what the situation was. Matthew was at the rally to protest, to assert his First Amendment rights. He had no motive, no other reason to go and storm the Capitol.

The only reason any of those people went to the Capitol, to storm it and to do whatever they did there was because Trump demanded it, Trump asked for it and Trump wanted it. You can't get away from that.

CUOMO: Now, look, if we were talking about your guy, I'd say "Hey, he put his hand on that fire extinguisher. He made every stupid choice himself, and he's going to get what he's supposed to get."

But in this trial, do you believe that he could - you explain to me why he thinks he had to do this for Trump?

BALAREZO: Well, first of all, I'm a little limited by the attorney- client privilege, as you well know, about what my client may have said to me.

But you have to understand, first of all, put my - my filings recently, into the proper context. I simply filed a motion for bond review, asking a judge to release my client pre-trial. And we brought up the Trump incitement to this rebellion, because it was relevant to whether or not my client can get out.

Now, as to why my client went there, obviously, he was there with the crowds. We can't get away from that.

[21:40:00]

He was there to, as I said, to protest what he thought was a stolen election, at the request of the President of the United States. And when they stopped, he stopped - when Trump said "Stop," they stopped, and they all went home.

That's really - again, you can't get away from that particular fact. It's not a defense that my client is alleging at this point, but it's merely a factor for the court to consider in his motion for a bond review, which is what I had filed.

CUOMO: And this isn't about your client now going bad on Trump, right? What is his disposition towards the President, as of your most recent discussion?

BALAREZO: Well, he's still a supporter of President Trump. I don't know if that's going to change or not. And no, it's not, he's not going bad on Trump. But he's got to take responsibility, as he knows, for his own particular actions. What Trump did is something for the Impeachment Managers and for the Senate to decide. And that really has nothing to do with what my client did, and why he took the actions that he took.

CUOMO: Well, listen, it has everything to do with it, in terms of what it means for Trump's trial. For his, own defense, you'll have to figure that out. I just wanted to make that clear for the audience. I appreciate you making that clear to us tonight. Thank you, Counselor.

BALAREZO: Thank you.

CUOMO: All right.

Just to be clear, OK, the guy still supports Trump, OK? He likes Trump. And he still will say, in court, and through his lawyer, "I went there because Trump told me to do it. And I stopped when he said to stop." What else do you need to hear?

The defense team argues that Trump's political speech is protected. And that is right. But having the right to say something, doesn't mean that everything you say is right, and will be said without any consequence, especially in a political context.

Does the First Amendment really allow a president to incite a mob, to overthrow an election that killed people along the way? And what is the test?

One of our brightest constitutional scholars about what is his right, but also the examination of what is right and in what context, next.

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CUOMO: There are three points to the former president's defense. First one, constitutionality, done! Two more, the impact of Trump's words on the rioters, that it was protected speech. OK, maybe he had the right to say it. Fine!

But you just heard from the lawyer of yet another person who breached the Capitol grounds. And yes, you have the right to say it, but it wasn't right. And when you put that idea in this guy's head, and he did what he did, you should be held to account. Now, how does this go with speech, his rights versus what is right?

Noah Feldman teaches at Harvard Law, testified in Trump's first impeachment inquiry.

Good to see you, Professor. Please explain for the audience the difference between protected speech, even if, it's criminal speech, and impeachable speech.

NOAH FELDMAN, HARVARD LAW SCHOOL PROFESSOR, CONSTITUTIONAL SCHOLAR, TESTIFIED IN FIRST TRUMP IMPEACHMENT INQUIRY: The First Amendment basically says that if you're a public citizen, or a private citizen, you can say whatever you want without fear of being prosecuted criminally for it. And so, it would be very difficult, maybe not impossible, but difficult to prosecute Donald Trump for what he said in that speech.

But the First Amendment does not apply to protect you or give you a get-out-of-jail-free card from being impeached.

What the President did is he committed an impeachable, high crime, of subverting democracy and inciting people to riot. And he did it while talking. And the fact that he did it, while talking doesn't bring him within the protection of the First Amendment.

The First Amendment is about what Congress can do through law, what the government can do to you. It's not about avoiding the consequences in an impeachment trial for something that you did wrong by talking.

CUOMO: Now, this is going to be somewhat immediately familiar, because people will think "Well, yes, you can get sued for defamation, right?" You can get sued for slander if somebody's lying about you. You can demonstrate damage, or, there's certain categories, where you don't have to demonstrate damage.

But what will be sticky here is people will say, "Well, but this is what politicians do is give speeches, you know? You never punish them for what they say. And lots of bad things happen. Why here?"

FELDMAN: Well you can't arrest them, and you can't send them to prison for saying things. What you can do is engage in an analysis of whether they committed high crimes and misdemeanors. And high crimes means political crimes, crimes punishable by impeachment.

The worst thing that can happen to Donald Trump, as a result of this impeachment, is that he can be banned from future office. That's not like going to prison. It's not like having to pay money damages.

And it's not protected by the First Amendment, because the Constitution has a separate process for impeachment. And it is entirely separate from the protections that the First Amendment gives you.

CUOMO: I want to depart for a moment. Because, I really do believe the question on these senators' minds should be how many people had to die for you to feel differently about it that day, how many of your colleagues. The humanity of it, I think, is being escaped because we're avoiding the 6th. They don't want to talk about it. We don't even remember. It took us a month to commemorate it.

Jamie Raskin, the Lead House Manager, Congressman, obviously, he and his wife, their family lost their son recently. You knew their son, as a student, and as a human being.

And there was something to his words today that I took as a reminder of our interconnectedness and our interdependence, and why we're supposed to care about each other, and what's been lost in our politics.

I want to play some of what the Lead House Manager had to say today.

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RASKIN: Distinguished Members of the Senate, my youngest daughter, Tabitha, was there with me on Wednesday, January 6th. It was the day after we buried her brother, our son Tommy, the saddest day of our lives.

The reason they came with me that Wednesday, January 6th was because they wanted to be together with me in the middle of a devastating week for our family.

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And I told them, I had to go back to work, because we were counting electoral votes, that day, on January 6. It was our constitutional duty. And I invited them instead to come with me to witness this historic event, the peaceful transfer of power in America.

And they said they heard that President Trump was calling on his followers to come to Washington to protest, and they asked me directly, would it be safe? Would it be safe? And I told them "Of course, it should be safe. This is the Capitol."

My Chief of Staff Julie Tagen was with Tabitha and Hank locked and barricaded in that office. The kids hiding under the desk, placing what they thought were their final texts, and whispered phone calls, to say their goodbyes, they thought they were going to die.

My son-in-law never even been to the Capitol before. And when they were finally rescued, over an hour later, by Capitol officers, and we were together, I hugged them. And I apologized.

And I told my daughter Tabitha, who's 24, and a brilliant algebra teacher in Teach for America, now, I told her how sorry, I was. And I promised her that it would not be like this again, the next time she came back to the Capitol with me.

And you know what she said? She said, "Dad, I don't want to come back to the Capitol." Of all the terrible, brutal things I saw, and I heard, on that day, and since then, that one hit me the hardest.

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CUOMO: Now, look, a colder heart would suggest, "OK, I feel badly for him and his daughter, and that they lost their son. What does that have to do with this?"

I argue, the relevancy of the connection to the human spirit, and where his head and his heart were that day, and their pain, and that that should matter to our leaders. The January 6th should matter.

And to contextualize that, you knew this kid. And what do you want to make sure what people know about who this kid was to his family and to you.

FELDMAN: It was a huge pleasure to teach Tommy constitutional law. And he was just a brilliant, alive, thoughtful, considerate, brilliant young man. His loss is just a terrible tragedy.

And his father is so proud of him. When I testified, at the first impeachment hearing, the Congressman made a point of coming over to say, "You know? The semester is beginning. You're going to have my son in your class, you know, don't go easy on him." And I said, "Don't worry about it."

And he was just an extraordinary kid, and very concerned about his classmates, and about doing the right thing and doing good things. And to me, he stands for what our country is capable of being. So, that tragic loss for the Raskin family is also a tragic loss for all of us.

And it's a kind of loss in a deeper sense of our capacity as a country to cross the aisle, to be connected to one another, and to treat our politics as a zone of rational discussion, which is something that Tommy really stood for, and passion for doing the right thing, which is also something that he stood for, rather than this, you know, this game of political fighting.

And so, when I - when I hear the political and the constitutional gamesmanship, and I heard a lot of that today, I'm afraid, from Donald Trump's lawyers, I just think that's not the world we want to live in. That's not the world we want our kids to have.

CUOMO: Yes, that's it, Professor, well-said, well-said, is that why does it matter that Jamie Raskin was talking about losing his son, and the fear of his daughter, because we're supposed to care about one another. And if that is what is guiding how you do your job, you won't be doing it the way you're doing it right now.

And that's the saddest thing, because if this isn't enough, if what happened on January 6th, isn't enough, what is? What if they had gotten their hands on Pelosi, and Schiff, and Pence? Would that be enough? And if that's the calculation, what does that say about us?

Noah Feldman, thank you for feeding the head and the heart. Appreciate you.

FELDMAN: Thank you.

CUOMO: Be right back in a moment.

Now, what I want to do with you is, before we talk to the big man, D. Lemon, did you see this or hear about the new CNN Original series, " LINCOLN: DIVIDED WE STAND." It is so appropriate. Take a listen.

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UNIDENTIFIED MALE: Lincoln freed the slaves.

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UNIDENTIFIED MALE: That is more complicated than that.

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UNIDENTIFIED MALE: New president, a prairie lawyer with no experience, trying to hold together the American experiment.

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UNIDENTIFIED MALE: The stakes were extremely high.

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UNIDENTIFIED MALE: This election is an earthquake.

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UNIDENTIFIED FEMALE: The biggest misconception of Lincoln is that he was perfect.

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UNIDENTIFIED MALE: The man who found a way to make democracy safe.

UNIDENTIFIED MALE: "LINCOLN: DIVIDED WE STAND" premieres Sunday night at 10.

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CUOMO: Special coverage tonight, we'll be back Midnight Eastern, special live, late night edition of PRIME TIME.

But now, it's time for the big show, "CNN TONIGHT" with the big man, D. Lemon.

DON LEMON, CNN HOST: I got to tell you, I've never seen anything like it. I was stunned by the Trump lawyers' performance. Just stunned! It was awful. Let's be honest, it was awful.

CUOMO: They don't have the law. They don't have the facts. They don't have the pedigree. And what they do have overcomes all of that. They have the jury rigged in their favor.

LEMON: Yes.

CUOMO: So they can do as bad a job as you think they did.