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Rittenhouse Draws Names From Raffle Drum To Narrow Down Jury That Will Decide His Fate; Judge Denies Defense Attorney's Renewed Efforts To Track Visitors, Remove Black Pastors From Court; Beto O'Rourke On Bid To Take On GOP Incumbent Greg Abbott In 2022 Texas Governor's Race. Aired 9-10p ET

Aired November 16, 2021 - 21:00   ET

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

[21:00:00]

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ANDERSON COOPER, CNN HOST: The party returns to New York Times Square, this New Year's Eve, after pared-back celebration, last year, because of COVID.

The Mayor in New York has announced that a full-strength crowd will be allowed in. The outgoing mayor says hundreds of thousands will be allowed to see the Ball Drop. You have to show proof of vaccination and a valid ID.

And, of course, if you don't want to brave the crowds, you can join me and, my friend, Andy Cohen, as we bring in the New Year's, live, from Times Square, on CNN.

News continues. Let's hand it over to Chris for CUOMO PRIME TIME. Chris?

CHRIS CUOMO, CNN HOST: It's not New Year's without Anderson and Andy! Everybody knows that.

I am Chris Cuomo. Welcome to PRIME TIME.

We saw something in the Rittenhouse murder trial, in Wisconsin that you don't see very often, inside a courtroom, a defendant seating the jury who will decide their fate.

Kyle Rittenhouse had a raffle drum placed in front of him. It was like some bingo or lottery or something like that.

And he pulled out slips of paper, at random, to whittle down the jury panel, from 18 to 12, right? You get six alternates, on standby, just in case, the jury, obviously 12. The final make up? Five men, seven women, 11 White, one person of color.

Day one, now, of their deliberations, has ended. And there is no answer to whether they find the defendant guilty of murder, and attempted murder, or whether the defendant convinced them that he reasonably believed he was facing imminent serious injury or death that night, and was therefore justified in using deadly force, at a "Black Lives Matter" protest, turned ugly, in August of 2020.

The prosecution's argument, "This defendant was a 17-year-old yahoo, who came, looking to start trouble, armed, actually provoked the people, who wound up chasing him."

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THOMAS BINGER, PROSECUTOR: When the defendant provokes the incident, he loses the right to self-defense. You cannot claim self-defense against a danger you create.

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CUOMO: Will the jury believe that? Now, let's say they don't. Even if the jury determines Rittenhouse did not provoke the first fatal shooting, they still must go through a very significant and specific analysis.

Did he act reasonably, shooting and killing, two unarmed men, and injuring a third, badly, who came at him armed, saying he believed the defendant, to be an active shooter.

Defense counsel had no pity for the dead, actually saying he is glad, the defendant killed.

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MARK RICHARDS, RITTENHOUSE DEFENSE ATTORNEY: Kyle shot Joseph Rosenbaum, to stop a threat, to his person. And I'm glad he shot him, because if Joseph Rosenbaum had got that gun, I don't, for a minute, believe he wouldn't have used it, against somebody else.

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CUOMO: What a thing to say! But did it resonate with the jury, just one of them, to bolster that self-defense argument? Is Rittenhouse a victim or a vigilante, here? How hard is this case, for the jury, 30- something pages of instructions, all these political overtones?

We've got great guests for you, one, very rare. Let's ask somebody these questions, who just did their duty of service, in a jury, in a case against the police, Officer Derek Chauvin, who murdered George Floyd. We're going to welcome Brandon Mitchell, tonight.

And we're going to answer the key legal questions with Mark O'Mara. You know him. He defended George Zimmerman, in the Trayvon Martin case.

It's great to have you both.

Brandon, thank you very much, for joining us tonight. So, take us inside the room, for your experience. Everybody's aware. Everyone's watching. This is heavy. There's a lot of political overtones. There's a huge set of instructions. One day in, what was it like in that room?

BRANDON MITCHELL, JUROR IN DEREK CHAUVIN TRIAL: I think the first day is always just about all the jurors just getting their thoughts out.

They've held all this information in, for the entire trial. They haven't been able to talk about it, or tell anybody about it. Now, it's finally their chance, to go over the key - the points that they thought were key, the evidence that they thought was key, and to just get all their thoughts out.

So, I'm pretty sure they spent most of today, just going over what they thought, of all the evidence, what they thought of Rittenhouse taking the stand, and what they thought of each, the defense and the prosecution's case.

CUOMO: So, that takes that long, to hear kind of everybody vent, where they are, and where they're not. And then, do you remember, with your situation, the instructions? Were the instructions an issue?

MITCHELL: The instructions are tough a little bit. I think, with our case, with Chauvin case, the judge did a great job, of telling us what to follow, and how to follow it.

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Their instructions, for this Rittenhouse case is a lot more in-depth. There's a lot more charges. The language is a little bit different. I think that might be a hiccup for them. I think it's going to take them some time to go over it, and really come to a conclusive idea, of what it is they're being asked, because there's just so much more information.

But that's definitely a discussion in itself is how to interpret each one of these counts of whatever that they're going for.

CUOMO: How hard is it for regular people, to put themselves, into a situation, of figuring out, whether it was OK, to kill someone?

In Wisconsin, the specific law at play is, you have to say, well, not would Brandon do it, or would Chris do it? But was it reasonable for this 17-year-old to do it? How hard is that for regular people?

MITCHELL: I think it's extremely difficult, just because it's not - it's not a normal thing. It's not something your average person is going to do, on a day-to-day basis.

They have to think about it about the situation, the scenario, though the mindset. There's so much to think about. And to break it down, as the average person is, it's a tough task. It's a really tough task.

And that's why it takes 12 jurors, to kind of talk about it, and come to a conclusion, amongst each other. Because if it's just one person - and everybody has different biases, and different thoughts, and different views, on everything, in life. But together, they can come together, with the right choice.

CUOMO: Mark O'Mara, do you think that Rittenhouse, being on the stand, gave at least one juror, reasonable belief that this kid was scared, and he had the gun, and they were going to try to kill him? And it made sense that he did what he did?

MARK O'MARA, CNN LEGAL ANALYST, CRIMINAL DEFENSE ATTORNEY: I think he did a good job of presenting his case. The crying, I thought, was pretense, myself. But I think it came across pretty well to the jury.

And again, in a self-defense case, Chris, as you know well, you have to almost put the defendant on the stand, because he or she is the one, who's got to say, "I acted reasonably. And I was afraid. And I was in fear of great bodily injury that was imminent," all those catchphrases that really can't come from the evidence, in most cases, and have to come from this witness.

And I'd tell you, at 18, a young witness, I thought he did a pretty good job, of presenting his case. He was very well prepared and coached.

CUOMO: Are you surprised that in a jury, with these kinds of political overtones, that they didn't sequester the jury? And what difference could that make?

O'MARA: I think we are now in the day and age that any jury, particularly in a case of any magnitude, like this, any publicity that's out there, has to be sequestered. It's just - it's an inconvenience. But the system has to be trusted.

And here's the problem. Chris, back when I started, it was the newspaper, right? Stay away from the newspaper. Now, social media and the internet just invades every moment of our life.

And I'm very afraid that these jurors, intentionally or not, were infected by non-relevant information that got to them, from a buddy, a friend, a tweet, a Facebook page, anything that they may have looked at, to pass their time, since they're so used to it. And it could really invade the jury, and really undermine the verdict.

CUOMO: Brandon, what was your experience, with people bringing things, into the room, from outside? Not physically. I mean ideas.

MITCHELL: Right. Yes. No, I mean, for us, we took it pretty seriously. I mean, we've pretty much stayed away from the media, as we were supposed to, and away from social media, as much as possible.

But, like he just said, I mean, people do have habits of checking their Instagram, or their Facebook, or whatever.

But with our - the Derek Chauvin case, we took it serious, to just not check those things, as much as possible, because it'd be too easy to bring something in from the outside. So, we actually, when we went into deliberation, we didn't - we didn't bring any of that in.

CUOMO: And how does it work, in your experience, in that jury, Brandon with when people - because these are very - these are hot-button issues, right? "Are you pro-police? Are you anti-police? What you thought of George Floyd?" in your case.

It's going to be a similar analysis here. Why this kid went there? What it was about for him? And the people, who were there, helping out, in the protests?

How does it work, in terms of people, voicing those opinions, even if they don't really go along with the facts, and law, in the case? Like, what was the vibe like, in your room, in dealing with those types of things?

MITCHELL: I think you can feel the energy that somebody is giving, based on the reasoning, as they're going through, why they think he should be guilty or not guilty.

As we're going through the reasoning, you'll start to get a vibe and the energy that they're giving off, as to what their political beliefs may be, or whichever side of the fence, you may say that they're on, just by how passionate they are, within describing certain parts of the evidence, and certain parts of the testimony.

You'll wind up starting to get the vibe, and you'll feel the energy, and you'll understand where they are with that, even if they don't say it directly.

CUOMO: Did you have any holdouts?

MITCHELL: What was that?

CUOMO: Did you have any holdouts, like somebody who was, one or two people, who were separate from everybody else?

MITCHELL: Yes, absolutely. I mean, we definitely had a couple people that were - they had different viewpoints, for us, for a period of time.

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And as they were - as those viewpoints were voiced, we had to think of different ways, to describe the scenario, and different ways to go over the evidence, to get everybody on the same page.

So, that's where the discussion really comes in, is if you have somebody with an opposing view, and you're kind of going over the evidence, again, you're going over the testimonies again, and you're breaking them down, in different ways, in different formats, to help this person understand, in a different - in a different manner.

CUOMO: Brandon, would this be an easy decision for you, this case?

MITCHELL: This one is a tough one, just because there are a lot more nuances. I think, with the Chauvin case, the prosecution did a really great job. With this case, it's - they didn't - I don't think they did as good as a job as the Chauvin prosecutors.

So, I think there's going to be a lot more to go over. I think there's going to be more conversations that are a little bit combative, within the deliberation room. But I do think that they're going to come out with the right decision.

CUOMO: What do you think that decision is? MITCHELL: I think their decision - I think he's - I think he's guilty, for sure, first-degree intentional murder. And I think that's what they'll come to, after going over everything.

CUOMO: You think he provoked the situation?

MITCHELL: Absolutely.

CUOMO: Mark O'Mara, you're shaking your head. You think that this jury, at least one of them can find that they don't believe that?

O'MARA: They're going to have a very tough time convicting a 17-year- old, at the time of the event, for what he seemed to be doing.

He definitely - he put himself in a bad situation. The provocation is a lot more difficult, to argue in this case, than you might argue in an Ahmaud Arbery case, or something like that.

CUOMO: Right.

O'MARA: I think they may come back, and argue, or give him a lesser- included. So, I see a lesser-included, or we might, I hope not, but we might see a hung jury.

Because it is so divisive, and it really is polarizing, as to whether or not using a gun, as to the circumstances, was justified, because somebody was coming at you, or you're not supposed to bring a gun, to a fistfight. And that's going to be the argument.

CUOMO: Mark O'Mara, thank you very much.

Hey, Brandon Mitchell, I got to tell you something.

MITCHELL: Yes.

CUOMO: This was really helpful. Thank you for doing your duty, obviously, in your trial. And thank you for explaining that process, to us, here, tonight. Appreciate you. Be well.

MITCHELL: Absolutely. Thank you very much.

CUOMO: All right. We got another big trial nearing an end. The defense is about to make its closing arguments, for the three White men, charged with murdering Ahmaud Arbery, the Black man jogging, where they live, remember?

Now, one of the most important moments, in terms of all the feelings, surrounding it, came today. But few caught it. I'll show it to you, with a great legal mind. There he is. Come on in. Next.

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CUOMO: Day eight, in the trial, of three White men, charged with murdering Ahmaud Arbery. Prosecution rested its case. I said in the tease that it's closings. No, I got it wrong. The prosecution rested the case.

Now, the defense has the option. Do you want to put on a case-in- chief? You don't have to. They say "Yes."

Now, there's a lot going on, in this trial that doesn't have to do with just the facts in the law, right? Obviously, there are racial overtones here. And there is a moment that must be called out, but not the one that you're thinking of.

Kevin Gough is the one you're thinking of, the attorney for one of the defendants, who renewed his efforts, today, to limit the presence of Black pastors, in the courtroom, like the Reverend Jesse Jackson, who sat alongside Arbery's mother. It's not the first time he picked this fight.

Now, I know you've heard many criticize him. And you've seen lots of civil rights activists saying how wrong this is. Listen.

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KEVIN GOUGH, ATTORNEY FOR WILLIAM "RODDIE" BRYAN: If we're going to start a precedent, starting yesterday, we're going to bring high- profile members, of the African American community, into the courtroom, to sit with the family, during the trial, in the presence of the jury, I believe that's intimidating, and it's an attempt to pressure, could be consciously or unconsciously, an attempt to pressure, or influence, the jury.

We don't want any more Black pastors, coming in here, or other, Jesse Jackson, whoever was in - was in here, earlier this week, sitting with the victim's family, trying to influence the jury in this case.

If a bunch of folks came in here, dressed like Colonel Sanders, with white masks, sitting in the back.

(END VIDEO CLIP)

CUOMO: Now, that's the moment that everybody's playing that stood out. This guy doesn't know the difference between Al Sharpton and Jesse Jackson? "Black pastors," not pastors, but Black pastors, like that's a thing? But that's not what stood out to me.

Did you hear how the judge responded? He didn't just deny the request. Listen to this.

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JUDGE TIMOTHY WALMSLEY, SUPERIOR COURT, EASTERN JUDICIAL CIRCUIT: What we have now with individual members, or individuals, coming into the courtroom, I will say that is directly, in response, Mr. Gough, to statements you made, which I find reprehensible.

These - the Colonel Sanders statement, you made, last week, I would suggest, may be something that has influenced, what is going on here.

You need to understand everybody that your words in this courtroom have an impact on a lot of what's going on.

I'm not granting a mistrial, at this point, based on these arguments that are being made.

(END VIDEO CLIP)

CUOMO: That moment should be getting way more attention. Why? Look, we're not wrongly fixated on what is wrong. But when you go all-in, on the outrage, you may miss a remedy that's right in front of you.

The minority population, and their allies, must complain about injustice, and prejudice. But who creates the change? The majority. That's who will create the change that we need.

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So, why not focus on what was right here? That judge lampooned this lawyer, for his ugly exclusion, of "Black pastors." The Colonel Sanders comment, as part of this absurd request, is using it as a caricature, of a Southerner behind the times.

This judge is proof of how change happens. He mocked it. "Not only are you wrong, on the law, but you're just plain wrong." That's how you change culture, you change mores. And if we reward what is done right, you'll see you won't have to shout, so loudly, about what is wrong.

Now, I want to bring in CNN Legal Analyst, and criminal defense attorney, Joey Jackson.

Always good to see you.

JOEY JACKSON, CNN LEGAL ANALYST, CRIMINAL DEFENSE ATTORNEY: Pleasure's mine, Chris.

CUOMO: Now, we know what he's doing, this defense attorney. It's just stupid for him to be doing it, because, since when is it new, to have supporters, of a victim's family, coming into a courtroom?

JACKSON: It's not new at all. But it's so troubling, to hear statements, like that, and it reminds you, of why we're really in that trial, to begin with, right? We talk about a person, who's running down the street, and this is what occurs. And it's part of a larger mindset. What makes you think that's OK? Look, you're a person who studies the law. You're an attorney. And you're there for an educated person. But it's more than that.

We know courtrooms are public accommodations. We know courtrooms are come one, come all. We know courtrooms are about the rights of an individual, to have a public and a fair trial. And so, you're saying, and minimizing, and otherwise suggesting that there are certain people that should be excluded from that?

But we know something else. We know that jurors are given specific instructions. And what are they? You focus that case on the evidence before you.

I don't care about who's sobbing, in the gallery. I don't care who comes into the gallery. I don't care what's written in the press. I don't care what people tweet. I don't care what they put on Facebook.

If you are sworn, to be a juror, we know that you evaluate the case, based on what you hear and see. And so, for an attorney, to be saying something like that, and meaning it?

And let's remember, you showed that clip from then. He renewed, today, the same notion that "You know what? We deserve a mistrial, because of the influence that people have." No, I respect jurors more than that.

I do not respect any person, who's a member, at bar, or otherwise, who would engage in statements, like that. No place for it. The fact that it's happening now is a disgrace.

CUOMO: Now, they're going to put on a case, and it's going to be self- defense.

And it's going to be "Listen, we wanted to stop this guy. We wanted to talk to him. He turned and came at me, and he grabbed the gun. And now, it's no longer my gun. It's the gun. And I had to defend myself."

JACKSON: Yes.

CUOMO: How compelling on the facts?

JACKSON: Well, if you get there, all right, the prosecution has done a very good job, at potentially, not letting them get there. What do I mean, Chris? I mean this. In order for you to avail yourself, of self- defense, you have to now get the benefit of that citizen's arrest law.

That's why, at the beginning of the trial, the judge instructed the jury, on burglary, for example, burglary with intent to steal, criminal trespass. Why? Because the jury has to conclude that a crime was committed, in their presence, right, the three defendants, or that they had immediate knowledge, of a crime.

Goes a step further, not only as to the crime, it has to be a felony, to implicate, you chasing and detaining them. So before the jury could get to - we're not there yet. We know that the defense will put on a case, if they choose, and there'll be closing arguments. But if we get to that point, the jury before, they get to argue self- defense, they have to get to the hurdle, where the jurors are convinced that they otherwise were entitled, to engage and interact with Ahmaud Arbery.

CUOMO: That's why they can't argue traditional or perfect self- defense, like in the Rittenhouse case.

JACKSON: Correct.

CUOMO: Because they provoked this situation, clearly.

JACKSON: That's absolutely right. And then, in addition to that, now you have the whole initial aggressor issue, too. So, the defense has a lot of hurdles.

Now, if they get to what you ask me, now potentially, you can have an argument, if you're the defense that it could have been the collective gun, right? But before you get to that argument, of was it self- defense, was I in immediate fear, did I act proportionately to the threat posed, were my actions reasonable, got to get to the citizen's arrest law, and you got to get past the initial aggressive doctrine.

Let's see what the jury allows. They may not let them get there. We'll see.

CUOMO: Very understandable. Thank you very much. Appreciate you. Joey Jackson.

JACKSON: Always. Yes, sir.

CUOMO: All right, we got big political news. A very familiar name, I think, is now trying to become Texas' next Governor.

Former presidential candidate, Beto O'Rourke, is here, fresh off his announcement. He's going to try to unseat Republican Greg Abbott. A Democrat in a deep-Red state, he has fought this fight before. What makes it different this time?

There he is with his peeps, next.

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(END VIDEO CLIP) CUOMO: Beto O'Rourke is running for Governor of Texas. You know him. Ran for Senate, against Ted Cruz, three years ago, came very close to winning.

He had Democrats dreaming of a purple Lone Star State. I don't think they've won statewide in Texas, I think, since Ann Richards, in 1990. Then he ran for president, two years ago.

Now he's launching his third big campaign, in his many years, mounting a challenge, to Republican governor, Greg Abbott. He's starting out nine points behind the governor, in the most recent poll. But what does a poll mean right now? He just got in the race.

So, let's bring in Beto O'Rourke, to talk about why he can do it.

Beto O'Rourke, thank you very much. Appreciate you joining us.

The good news, for you, Governor Abbott, sliding in approval ratings, put them up for the audience, because I want to ask you why you think this is. 52 percent, 28 percent, approve, disapprove. Now, 43 percent, 48 percent. He's now what we call in politics, upside-down.

Why do you believe that is? And what does that mean for you?

[21:30:00]

BETO O'ROURKE, (D) TEXAS GOVERNOR CANDIDATE, (D) FORMER U.S. REPRESENTATIVE - TEXAS, (D) FORMER PRESIDENTIAL CANDIDATE: Chris, it's because of the people of Texas, like those that I'm with tonight, in Laredo.

Want us, to get focused, on the big things that we can do together, like creating great jobs, ensuring we have world-class public schools, and then making progress, on common-sense things that we agree on, like expanding Medicaid, so more people can see a doctor. Instead of that, Greg Abbott has failed the people of Texas.

Literally, the power grid, in the energy capital, of North America, failed the people of the state, in February. Millions were without power. And hundreds, including an 11-year-old boy died. He died in his sleep, because Greg Abbott could not guarantee the most basic level of government, for the people of Texas.

When you add to that, the 72,000, who have lost their lives, in his incompetent response, to the COVID crisis, and the fact that he would not allow local schools, to require masks, in the classroom and, as of September, the state led the country, in childhood COVID deaths, then you understand, why the people of Texas, want a change.

They want competence in their government. They want us to get back to the big things that bring us together. And this extremist divisive politics of Greg Abbott, we want to put it behind us, and get back to the future, the future that Texas should own.

CUOMO: So, how do you deal with a Texas voter, who says "You know what, Beto? You're a nice guy. But you're on the wrong team. You Democrats are crazy. And that's why, in 2020, Democrats had big losses, in Hispanic Texas regions, because the party's out of step, with the people of Texas. Texas has gotten more Red, not less."

How do you deal with that?

O'ROURKE: I think when we see each other, exclusively, as Democrats, or Republicans, or define each other, by our ethnicity, or race, when we focus on the things, that, divide us, we're never going to make progress. We're never going to win elections.

But when we instead see ourselves, as Texans first, and foremost, and focus on the things that the people of Texas want, like making sure that in our classrooms, kids are getting a world-class education, they want that.

And, right now, what we see is that seven out of 10 kids, in a fourth grade classroom, cannot even read at grade level, in the State of Texas.

It might help, if we paid teachers, in this state, a real living wage, so they don't work a second or a third job. And so, they can focus on their most important job, unlocking that lifelong love, of learning, in that child, before them.

That's not a Republican issue. That's not a Democratic issue. That is a Texas value. And the folks in this state want us to get back to focusing on just those things. So, that's how we bring people together. That's how we win.

And Chris, it is the only way I could hope, to serve everyone, in this state, is by bringing people together. And so, that's why, I'm here, in Laredo, tonight, together with some great people, who are going to help us to win this thing.

CUOMO: How do you avoid, what happened in Virginia, where the Republican made the case that "Oh, I'll talk education. And the kids have to read. But it's about what they read also. And these Democrats want to teach them that if you're White, you're a problem, and that you have to apologize for everything that's happened. And they're going to judge your kids."

It worked in Virginia, on that issue of education. How do you stop that, from happening in Texas? Because Abbott's on the same page.

O'ROURKE: First thing that we need to make clear is we want every parent involved in their child's education.

My wife, Amy and I are really involved in our high-school son, our middle-school daughter, in our elementary school son's education, meeting with teachers, showing up at school board meetings. I expect that of every Texan.

That produces a better education, for those kids, in our classrooms. And it's another way of supporting those teachers, who have the most important job that I can think of. But we also need to make sure that we're focused on the outcomes and the results. I mentioned what's going on, in those fourth grade classrooms, right now. We also have a real challenge, in graduation rates, and the ability to get a post-secondary degree, or certification, apprenticeship, or bachelor's degree.

Those are the things that help you to earn more in your life, to do better, and to give back more, to the State of Texas. All of us, as parents, want that to happen. So, let's bring all these parents together, on those issues.

Let's get past the culture war stuff, and the divisive issues, and get back to the basics, reading, Math, making sure that we're good to one another, and looking out for each other. That's the Texas way.

When the power grid failed, and those in power failed all of us, we put our differences, behind us, got together, and helped one another out. That's how we came through that crisis. That's how we'll meet these challenges before us.

I have a lot of confidence in this state, very proud of Texas. I know that we can do it.

CUOMO: Well, one thing's for sure. You guys came through the crisis, but you didn't fix the problem. So, there's definitely work, to be done, down there.

Beto O'Rourke, good luck. Appreciate you coming on PRIME TIME.

O'ROURKE: Thank you, Chris. Appreciate it.

CUOMO: All right.

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CUOMO: Got those people with him!

[21:35:00]

A vote is coming tomorrow, in the House, to censure Republican Paul Gosar. Why? Because he posted, that anime murder-fantasy video, depicting himself, killing one of his colleagues, swinging swords, at President Biden.

Is that really just a joke? It's the only way this guy seems to like to joke. He's constantly threatening people, in the other party. Now, the question is, what should the consequence be, if anything? Should he be stripped of a committee assignment?

Let's take it to someone, on his side, of the aisle, who I would argue that Congressman Reed, he's in more trouble with his party, for doing the right thing, than Gosar is, for doing the wrong thing. How is that possible? Next.

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CUOMO: Is the only rule, in the GOP, these days, "Hate Dems, or else?" Why are their members being threatened, just for voting, to improve roads and bridges?

Meanwhile, Marjorie Taylor Greene, the QAnon creep, is just shrugging, shrugging, shrugged her shoulders, "Yes, I put a target on their backs, so what?" Nobody says anything to her in the party.

Congressman Tom Emmer says it's the price of politics. Quote, "Unfortunately, in the world we're in right now, we all get death threats, no matter what the issue is." Is that really just OK now?

It's hard to find anyone with an "R" next to their name, who will call out Paul Gosar, for the threatening tweet that's about to get him censured, tomorrow. What's going on?

My next guest is one of those Republicans, who voted to invest, in his own district, because his voters and constituents want him to.

Congressman Tom Reed, thank you.

REP. TOM REED (R-NY): It's good to be with you, Chris. Thank you.

CUOMO: What does it mean to you that you've got more trouble in-house, than somebody, who's like putting up stupid cartoons, cutting off Democrats' heads, and going at the President with swords?

REED: Well, obviously, my vote, for infrastructure, was something that part of my party rejected, and did not agree with. But I'm proud of that vote, because I believe I was doing the best interests, of our district, of our state, and of our country.

And, at the same time, I recognize that people are going to not agree with that. But, at the end of the day, I'm going to do what's right, for the people of our district, and of our state, and make the call, as I see it, as I'm representative of them, not of people in Washington D.C.

CUOMO: What do you think is driving the people, who are coming after you, with all the ugly threats?

REED: I think there's a lot of misinformation. I think there's this thought process, in Washington, D.C., in politics today that to motivate folks, you got to scare them, you have to instill fear. I'm of a different mindset. I believe leadership means, you govern. You have to get to yes, to get things done, for the American people. It's easy to vote "No," when it's very difficult to vote "Yes," in this environment.

And so, I encourage my colleagues, you know, what? It's time, our problems in America are so large, that we need to solve problems rather than engage in partisan politics, 24/7. And I think that's what's driving a lot of the animus there in the country today.

CUOMO: Engage my cynicism. As someone who grew up in politics, I look at your situation. I know you. We've talked a number of times.

REED: Yes.

CUOMO: Why do you keep doing this, right now? They're doing ugly things to your kids. They're constantly sending - they're throwing bricks, through the windows, of your office? I mean, is it worth it?

REED: I still believe in the institution of Congress. I still believe in America. And it is worth it. It is worth it, to roll up the sleeves, and get something done, for the American people.

Like yesterday, I went to the White House, stood on the lawn, with my colleagues, on the Democratic side, and said, "Look, I'm going to try, to send the message, to those back home, and to those young men and women, in particular, that Congress can still work." And we have those moments still, just as recently as 24 hours ago.

And so, I'm going to continue to try to inspire leaders, to step forward, and say, "You know, what? Do what's right, and the right politics will take care of itself."

CUOMO: But isn't it just a one-off, the infrastructure bill, and your party is resolutely against working with Democrats? I mean, literally, opposition is their position. I mean, isn't your party going in the opposite direction of what you're saying you should be doing?

REED: And I'm trying to influence the party, from within, as best as I can.

But I've also watched in the Democratic Party, Chris, with all due respect, to my colleagues on the other side, there's this mindset in the Democratic Party, that you can't work with Republicans that they are the enemy of the state. And that extend on both sides.

And so, I'm not going to point fingers at our side, and I'm not going to point fingers at the other side, in regards to those members that are willing to set aside that extremism that is influencing both sides of the aisle.

CUOMO: Within your own party, what does it mean to you that there is either not much being said, or there's some protection, subtle or not, protection given to Paul Gosar, but guys, like you have a target on their back. REED: I mean, I understand it, and it's frustrating. And I just tried to express how I feel about it, with my colleagues. I deal with it, as I do with anything in my family, in regards to the - you know, I'm the youngest of 12.

And how best we've handled our differences, how best we handle our criticism, of those in our family, is to go to them, look them in the eye, and say, "Really? Is this what you want to do, as an example, not only for the family, but also for this - for the nation and the state?" And I think that resonates better.

And I would encourage, all members of Congress do that. Stand up, go talk to them, eyeball to eyeball, and look them in the eye and say, "You know what? We can do better than this, as members of Congress." And that's what I've done.

CUOMO: So, if you've done that, how you're going to vote on the censure motion?

[21:45:00]

REED: I appreciate it, Paul, accepting responsibility, for it, in front of the Conference. Got up, in front of the Conference, today, and condemned violence, recognized his mistake, in regards to this video, being put together, and sent out.

And my hope is, is he reaffirms that tomorrow. And if he does that, then I'm willing to give my fellow colleague, an opportunity to reconcile himself.

CUOMO: What if he doesn't show?

REED: You know we'll have to wait and see. But right now, where I'm at with it is I've talked to Paul. I've expressed how I feel. And he did express it to the Conference. And I give him credit for doing that.

And my, also, point on this is, as Democrats try to claim the item of self-righteousness, on this issue, be careful really who you're pointing the finger at, because there's three fingers always pointing back at you.

And so, this is a - this is a pox on all of our houses. And we must stand up, in regards to our individual families, to deal with these issues.

CUOMO: Congressman Tom Reed, appreciate you being on the show.

REED: Chris, it's always good to be with you. Thank you so much.

CUOMO: All right, stay safe.

More subpoenas may be coming this week from the January 6 committee.

And as the panel weighs, how to handle, Mark Meadows' non-compliance, the lawyer for Steve Bannon, who's charged with contempt of Congress, comes to CNN, and makes a wild case, for Bannon's innocence. My next guest calls it a layer cake of BS, and is about to deconstruct it. Do you deconstruct the layer cake? We will, next.

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TEXT: CUOMO PRIME TIME.

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TEXT: LET'S GET AFTER IT.

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CUOMO: The Steve Bannon case matters, because there are a lot of Trumpers, trying to decide, if they'll follow his lead. Be a martyr. Get a platform. Chief among them, the former president's Chief of Staff.

During the Insurrection, Mark Meadows, he was all over the place, trying to spread stink. The January 6 committee is still trying to determine what to do about his refusal to testify.

He and his lawyers are following the Bannon case, I promise you that. They're going to wait to see whether these arguments hold up in court.

Bannon's lawyer, David Schoen, was supposed to be on this show tonight, to make that case, directly to you. He bailed. But we got a sample, of his offerings, on "NEW DAY," this morning. So, we'll take you through it.

Let's take his case, and give someone a chance to counter it. How about Norm Eisen?

Welcome back. Good to have you.

NORM EISEN, CNN LEGAL ANALYST, HOUSE JUDICIARY SPECIAL COUNSEL IN TRUMP'S FIRST IMPEACHMENT, FORMER WHITE HOUSE ETHICS CZAR: Thanks for having me back, Chris.

CUOMO: Now, there's a main assumption, in Bannon's argument, which is this, a letter from the former president's lawyer, to his lawyers, saying they intend to assert privilege, and not to testify, is enough.

Is it enough, in form, first of all, meaning to them, and not to the committee, and in substance?

EISEN: Chris, the letter is not enough. Bannon had an obligation to do what we see the former Chief of Staff, Mark Meadows doing. You have to negotiate. You can't just rely on a paper by fiat. Bannon is not the judge in his own case. And Chris, you have to show up and take the questions, one by one, like Jeffrey Clark, the coup lawyer, from the Justice Department did. He refused to answer them. But at least he showed up.

And Chris, the letter has to make some sense. Bannon wasn't a member of the Executive, so executive privilege, which bars information, from being shared, can't apply to him. Many of the subject matters were about his podcast, or his conversations with people, who were not in the government.

The whole thing is a lot of nonsense that Schoen was peddling, on "NEW DAY," this morning.

CUOMO: Why didn't Congress litigate the issue with Trump, get it out of the way? And then there is no good-faith argument among any of the people they subpoena, about whether or not they can come.

EISEN: Chris, time is of the essence. We know that what President want - ex-President Trump wants is to tie Congress up, in litigation knots, to lose a series of battles, but win the war. We saw that in the litigation that we mounted against him, as part of the first impeachment.

On garbage privilege claims, like this, there's no obligation to go to court. This is a subpoena. If you or I did not answer this subpoena, we would be in the same boat. If we were subpoenaed, to court, and we didn't show up, they'd send a marshal out for us.

You can't defy the law this way. Congress has no obligation to go to court. Bannon should have shown up.

CUOMO: How do you prove, if you're Merrick Garland and Co., et al., as we say, in Latin, how do you prove the mens rea element, of the statute that he willfully disobeyed the congressional subpoena, if he says, "Listen, I got this letter, from the former president, saying "Don't do it." I'm not willfully disobeying. I have to take this under advisement."

EISEN: Well, you look at whether there's reason to believe that that's a lie. And in Bannon's case, we know that that is not a good-faith argument, because it makes no sense, for him, to be able to assert executive privilege.

The guy's a podcaster. Is there going to be a podcast privilege now? Chris, if I didn't want to talk about a conversation, we had to get ready for the show, am I going to be able to assert the guest privilege? There's no such thing, so you can't claim something, when it's so ludicrous.

And more evidence of willfulness? Outside of the FBI yesterday, when he surrendered himself, he said, "We're taking down the Biden regime," OK? That is his state of mind, not compliance, not good faith, defiance, not compliance, Chris. That won't cut it. He acted willfully.

CUOMO: Defiance, not compliance, when it rhymes, it's cogent. [21:55:00]

Norm Eisen, thank you very much. Appreciate you making the case.

EISEN: Thanks, Chris.

CUOMO: All right, we'll be right back, with the handoff.

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CUOMO: Hey, don't forget, tomorrow night, we have a special conversation, with Bill Maher. He's here for the whole hour.

He talks about his warning, of a slow-moving coup, to help Donald Trump, the state of play, with our politics, in this country, what he thinks the Left is doing wrong, and the wokeness debate.

That, and much more, with a smart man, Bill Maher, tomorrow, on PRIME TIME.

Thank you very much. I want to get you now, to the big show, "DON LEMON TONIGHT," with its big star, D. Lemon, monitoring all that's going on, in these massive cases, in our midst.