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Anderson Cooper 360 Degrees

Ex-Cop Potter Guilty Of Manslaughter In Daunte Wright's Death; F.D.A. Authorizes Second Antiviral Pill As COVID Cases Surge; Trump Repeatedly Pushes Boosters After Previously Saying, He "Probably" Wouldn't Get One; Trump Files Supreme Court Appeal To Block Records Release; Holiday Travel Approaches Pre-Pandemic Levels Despite Covid- 19 Fears; Literary Legend Joan Didion Dead At 87. Aired 8-9p ET

Aired December 23, 2021 - 20:00   ET


JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT (voice over): A handful fight in court.

REP. JASON CROW (D-CO): We won't stop fighting for democracy. We won't stop fighting for rule of law.

We're not going to back down. We won't be intimidated. We're going to keep going.

SCHNEIDER (voice over): Jessica Schneider, CNN, Washington.


KATE BOLDUAN, CNN HOST: Thank you so much for joining us.

AC 360 starts now.


JOHN BERMAN, CNN HOST: The defense said a mistake is not a crime. The jury said it was manslaughter.

John Berman here in for Anderson.

When Minneapolis area Police Officer Kim Potter shot and killed Daunte Wright during a traffic stop back in April, she had 26 years on the job, six years longer than Wright lived to be.

She had countless hours of training as any officer does on her duties on the law, on when to use the Taser she carried on the left side of her body and when if ever, to use her handgun on the right.

Yet, on the 11th of April, in the middle of a traffic stop that began with Wright being pulled over for a dangling air freshener, all of that training broke down in this is what happened.


KIM POTTER, FORMER POLICE OFFICER: I'll Tase you. I'll Tase you. Taser. Taser. Taser.

I shot him. Oh my God.


POTTER: Oh my God.


BERMAN: it was the worst mistake anyone entrusted with using deadly force can possibly make.

During her cross examination, Potter admitted that Wright had never threatened her or the other officers.


ERIN ELDRIDGE, ATTORNEY: You never saw a gun.


ELDRIDGE: He never threw a punch, right?


ELDRIDGE: Never kicked anyone?


ELDRIDGE: Never said, "I'm going to kill you."


ELDRIDGE: Never said "I'm going to shoot you."


ELDRIDGE: Never said "There's a gun in the car and I'm coming after you."



BERMAN: Yet, she fired and Wright died.


POTTER: I'm sorry it happened. I'm so sorry.


BERMAN: Her show of remorse, did not, in the end move the jury, at least not enough to acquit.


UNIDENTIFIED FEMALE: We, the jury on the charge of manslaughter in the first degree while committing a misdemeanor on or about April 11, 2021 in Hennepin County, State of Minnesota, find the defendant guilty.

We, the jury on the charge of manslaughter in the second degree, culpable negligence on or about April 11, 2021 in Hennepin County, State of Minnesota, find the defendant guilty.


BERMAN: The judge then pulled the jurors and revoked Potter's bail. She was taken into custody where she will await sentencing in February. As a first time offender, under Minnesota guidelines, she likely faces between six and eight and a half years in prison.

Joining us now, Jonathan Mason, who was a mentor to Daunte Wright.

Jonathan, thank you for joining us. You've spoken to us over the last year and I really appreciate your insight. What's your reaction to the verdict tonight?

JONATHAN MASON, MENTOR TO DAUNTE WRIGHT: I'm very pleased with the -- you know, the verdict from the jury. Like the Judge told them, they are heroes. But this was the verdict that I know everybody in Minneapolis was hoping for, and the jury did come up with the right verdict on this one.

BERMAN: Is it justice in your mind?

MASON: No, it's not. It's accountability. For justice would be, Daunte being here with us. But this does show law enforcement and you know, systematic, you know, people who are in these positions of power when they make these mistakes or cause these ultimate deaths to our, you know -- our people within our society, you will be held accountable.

And in Minnesota, you know, with George Floyd, we had that happen, and now, everybody was awaiting this verdict and it was the right decision.

BERMAN: I understand you were in downtown Minneapolis when you heard the verdict. What's the mood there now?

MASON: You know, everybody -- there is a sigh of relief for our community, but many people are saying, you know, there are many families like this in the same position, right?

And Kimberly Potter, this is not her first time, you know, in this situation. She was involved with another shooting with Kobe Heisler and we felt that that was covered up. So you know, for us, it's a sigh of relief. We got, I guess, a bad, you know, officers off the street. So, you know, moving forward, I think this will be the model not only for Minneapolis, Minnesota, but hopefully for all of our society.

BERMAN: I know one of the things that is most painful for you is you had conversations with Daunte in the past about how to interact with police. MASON: Right.

BERMAN: What were those conversations like? And what did you tell him?


MASON: You know, working at the school with him, I would tell him and all the other kids, you know how to behave, how to interact with police, because me, being a man of color, right, being from Minneapolis and to deal -- having several encounters with the police, I know that your life can be taken from you within a second.

And sometimes it won't be -- it won't be held into account, and we don't see this type of accountability. So I tell kids how to behave, how to act and Daunte was one of those kids. Unfortunately, you know, this officer made a mistake that cost him his life. And, ultimately, the jury said it's manslaughter. So, as a mentor to these kids, this is on all angles, I think this will be an example for people to say, man, things could have been differently on his reaction, her reaction, but ultimately, this is what happens in our society when these types of things happen.

BERMAN: Just lastly, what do you want people to know about Daunte? How do you want him to be remembered?

MASON: Well, you know, he was a father, right? He has a son. He was a part of our society. He had friends, he was a brother. And so people would remember him as a human being that we all have to guide and mentor and stand up for and ultimately, we did this here. And I am just -- I hope everybody understands that his life mattered as well.

BERMAN: Jonathan Mason, again, we are sorry for your loss. Nice to speak with you tonight. Thank you so much.

MASON: Thank you, John.

BERMAN: CNN's Omar Jimenez has been covering the trial. He joins us now from Minneapolis. Omar, talk to us about the reaction inside the courtroom when that verdict was read.

OMAR JIMENEZ, CNN NATIONAL CORRESPONDENT: Yea, John, so when the verdict was read, Daunte Wright's mother burst into tears as former officer Kim Potter stood there emotionless, but it was an emotional moment. At one point, one of the jurors appeared to be struggling and another juror had to support them.

As Potter was taken into custody and she was led out of the courtroom. Her husband yelled, "I love you," as she yelled, "I love you back."

Meanwhile, Daunte Wright's father and his crying mother were embracing in a long hug with the prosecution.

Wright's mother later on said that today we got accountability, and that's what we've been trying to get from the very beginning. This is of course the second jury to convict a former Minneapolis area police officer. The first was earlier this year with Derek Chauvin.

And Minnesota Attorney General Keith Ellison who led the prosecution in both efforts said this sends a clear message that juries want to hold these police officers to high standards and for law enforcement, he said this shouldn't be seen as a symbol of shame, but instead as a moment to restore trust through accountability.

He added though, as we heard Jonathan Mason say, this isn't full justice because at the end of the day, Potter still is able to correspond and speak to her family, Daunte Wright cannot.

BERMAN: In terms of sentencing, Omar, when does that happen? And any indication of what the Judge is going to do here?

JIMENEZ: Yes, John, so sentencing is set for February 18th, and Potter is currently being held without bail and she has actually been seen smiling in some of her latest mug shots that have been taken -- of course, were taken after she was convicted of manslaughter both on two counts for the killing of Daunte Wright.

But in that sentencing because she has no criminal history, she will likely be looking at a sentence range between a little over six years and a little under nine years as part of this. In between them though, the prosecution will argue for what is known as aggravating factors to tack on to sort of the recommended guidelines within the State of Minnesota here along with we'll hear victim impact statements. People that were -- that have -- who has had their lives changed from this, who will argue that the sentence should be more severe than what the guidelines show.

And another note that I just want to make known was Daunte Wright's mother today said that his favorite number was 23, and here comes this conviction on the 23rd of December -- John.

BERMAN: Omar Jimenez covering this story for us tonight. Thank you so much for being there.

Perspective now from two distinguished criminal defense attorneys, Sara Azari and Mark O'Mara.

Sara, were you surprised by the verdict? Because we were all together last night talking about this as the jury finished for the day, no questions yesterday, and there had been some notion they might be hung.

SARA AZARI, ATTORNEY: Yes, John, good to be with you. I was surprised and not surprised.

I was surprised because as we spoke about this, 26 hours of deliberation, an entire day with no questions clearly a jury that was struggling with the idea that she may very well be guilty under the law, but they just couldn't find her guilty.


AZARI: And we thought, you know, I was -- my tea leaves were aligned with Mark's that this was going to be a hung jury and a mistrial. So in that sense, I was surprised.

But I'm not surprised because this jury basically set aside bias and heart, applied the law to the facts, and most definitely Potter was guilty, guilty.

Now, as someone who you know, who has represented officers and civilians, I'll tell you, John, that, you know, three years ago, three to five years ago, this would be a full acquittal, not even a concern over a mistrial.

So the fact that we're now seeing more accountability for officers, the idea that they're not above the law, that if they do the crime, they do the time, it is definitely not systemic change, but it is definitely a changing trend, and this is not something that would have happened earlier.

And we have to remember that, you know, intent was never an element to these crimes that were charged and mistake was never a defense. So, this was absolutely the just verdict and the right outcome.

BERMAN: So Mark, what do you think did happen in that jury room now that you've heard the verdict and saw the reaction from the jurors themselves?

MARK O'MARA, CNN LEGAL ANALYST: Well, they did struggle. I really thought, I have to acknowledge I was wrong, when I told you yesterday, I thought it'd be a hung verdict, and I thought that they were leaning towards acquittal. And I thought maybe there was one or two that were looking for a conviction.

I was quite surprised that 12 people could agree that that was a crime, because there were so little animus, there was so little anger, and I understand the law, you don't have to show that. But we, as people, and therefore jurors look at a case like this, and they want to see that bad feeling. They want to see that animosity in order to try and convict somebody like Miss Potter of this.

I was very surprised that it went towards conviction on both. And I understand that they wrestled with it long and hard. I guess, there were a couple that were holding out for acquittal and that the other -- the 10 or nine, whatever it might have been, were able to convince them that this should be a conviction.

But I've got to tell you, John, I don't -- realizing that Daunte Wright's family feels justified and feels that this is the right verdict, I don't know if this is a good verdict for the criminal justice system if we're going to hold cops to this level of criminal liability with what was obviously a horrible and tragic mistake, but one with absolutely no animus.

BERMAN: Well, but based on what the prosecution said there and the law, a mistake is not really a defense here, Mark?

O'MARA: Well, no, it is not a defense, I really believe that when we look at -- it has to be what we call criminal negligence. It's not -- it's gross negligence. It's that type of negligence where you act in such a bad way that you should be held criminally responsible. And I -- obviously, I respect the jury's verdict, but I still don't think that grabbing a gun, believing it to be a Taser, saying that it's a Taser, not having any prior bad acts that you could go back and say this is just a bad seed.

It's all of that that I'm concerned about that we are now holding cops for that responsibility.

BERMAN: Do you agree -- do you agree with Sara that this would not have happened three or five years ago, this verdict?

O'MARA: I do. Finally, in the days of Floyd and now this case and some others that we've all been involved in and have talked about, we are without question holding cops more responsible for their actions. They do not get a free pass.

But I do think we need to talk about, you know, where this came from? I really think this is an implicit bias reaction that we now need to truly train cops and law enforcement how to rethink their perspective of young black males, because there is no question that something in Kim Potter's back of her brain said this is more dangerous than it actually was.

BERMAN: So Sara, what was the one key piece of evidence or the one key moment of the trial then that you think pushed this toward conviction?

AZARI: Well, I mean, I think, although I don't know exactly what changed the trajectory of obviously, you know, a struggling jury, I do believe that the ability to compare the weapons and just see how grossly negligent she was or criminally negligent she was, given the vast differences between these two weapons.

And so, although I see Mark's point, you know that this was just a very egregious case. It's not every day that an officer with 26 years of experience and training and certification, mistakes a gun for a Taser.

And so I think that the jury's ability and I think I mentioned that the other night that that could potentially change the trajectory of this struggle that they were having and being deadlocked.

BERMAN: And they could hold those items in the jury room. They had access to them. They could touch themselves. Is that something that always happen, Sara?


AZARI: Yes. No, it doesn't. But typically, you know with a case like this, it really turns on, you know, those pieces of evidence. Of course, it would be allowed and it was safe and it was critical that this jury got to see for themselves and feel for themselves how incredibly negligent she was.

BERMAN: So Mark, you say you were surprised by this verdict. Was there something the prosecution did well you think that got the conviction here? Or was there something the defense didn't do well?

O'MARA: No, I thought the defense did a good job. I think the prosecution did a good job and they got their conviction because they were able to show exactly what Sara just said that this was not an easy mistake to make.

This was not, you grab one gun that looks the same and feels the same and weighs the same, but it was in the wrong holster. I think, they did a good job of saying exactly what they needed to, to get the conviction that they now got, which is, it is so negligent, it is so unusual to grab a Taser and think it's a gun that that act itself, evidence is recklessness.

It's sort of like, you know, when you drive a car somewhere, you do 70 miles an hour through a school zone. It is so per se reckless, that you have to be held responsible.

Again, I'm concerned, but I respect the jury's verdict, and I think the prosecution did a good job of separating out her behavior, her remorse, and saying we have to hold people responsible when they do something tragic when it is so unbelievably negligent and they did a good job with that.

BERMAN: Sara, what do you think about sentencing?

AZARI: Yes, just to Mark's point, one more thing, I think the prosecution -- that was really important for this conviction is the idea that they hammered in, the mistake is not a defense, a mistake is not an defense, because their defense got to get in an expert who was talking about the reasonableness of the defense, the consciousness of Potter about the mistake.

So, you know, I think that was really key to remind this jury that, forget all this noise about a mistake because it's not a defense.

Sentencing, John, I think, look, we're going to expect aggravating factors to be argued by the prosecution, those are Blakely factors. And we're going to expect mitigating factors and response by the defense.

So the idea that, you know, she has a family. She has had 26 years of -- you know, a 26-year career with law enforcement. She has never had any record of discipline or criminal record. She's committed her career to protecting and serving, I mean, those are all -- and then of course, that mistake, which was not a defense could potentially be a mitigating factor for the defense in sentencing.

And then the prosecution is going to argue that, you know, she violated the public trust in such a horrible way, and that she in fact, violated department policy by not practicing with her Taser. So it'll be interesting to see what the Judge does, but the Judge can go from zero to max on count one.

BERMAN: Sara Azari, Mark O'Mara. Thanks so much for being with us and helping us understand this trial. It has been really interesting over the last several days. O'MARA: Have a great Holidays, John and Sara.

BERMAN: You, too.

AZARI: Likewise. Happy Holidays.

BERMAN: We do have breaking news as COVID cases skyrocket as well as something almost unimaginable. Doctors and nurses facing hostility threats, even outright violence from COVID patients and their families.

Also with his old boss now touting boosters, we will speak with President Trump's Surgeon General, Dr. Jerome Adams. That and more ahead on 360.



BERMAN: As we go into our second Christmas with COVID, there were no shortage of developments today. The F.D.A. approved a second pill for treating it. The antiviral from Merck joins one from Pfizer which won approval yesterday.

On the minus side, also from the F.D.A., word that only one of several monoclonal antibody treatments now on the market is likely to be effective against the new omicron strain, which continues to surge.

Take a look. Cases are now averaging more than 180,000 a day. New York State and Washington, D.C. both shattered case records. More than 70,000 hospitalized today, deaths up 14 percent over last month.

Against that troubling backdrop, the C.D.C. put out new guidance cutting the quarantine time for healthcare workers who test positive from 10 days to seven, which ought to be a good thing for getting medical professionals back into the front line. That is until you stop and think about what far too many are facing there, in addition to everything that comes with fighting a pandemic.

As CNN's Ed Lavandera reports, they are also up against an epidemic of hostility.


DR. JEFF LYONS, CENTRACARE, ST. CLOUD HOSPITAL: My name is Jeff. Your ICU doctor here.

ED LAVANDERA, CNN CORRESPONDENT (voice over): Dr. Jack Lyons spends his days treating COVID-19 patients fighting for their lives inside St. Cloud Hospital in Minnesota.

Like so many other doctors, he feels the strain.

LAVANDERA (on camera): What's it been like to work in this atmosphere?

LYONS: It's exhausting. It is frequently heartbreaking. It is demoralizing at times.

LAVANDERA (voice over): Dr. Lyons says it's also getting hostile as patients are demanding bogus medical treatments.

LAVANDERA (on camera): Are people treating these treatments like they're picking items off of a menu at a restaurant?

LYONS: Absolutely. Folks act as if they can come into the hospital and request any certain therapy they want or conversely, decline any therapy that they want with the idea beyond that, somehow they can pick and choose and direct their therapy and it doesn't work.

LAVANDERA (voice over): That's putting healthcare workers at risk. Hospitals are facing a slew of lawsuits demanding risky treatments.

Across the country, there are reports of growing hostility between medical workers and patients and their families. It's a daily dose of threats and vitriol.

LYONS: They insult your intelligence, they insult your ability, and most hurtful, they say that by not using these therapies, you are intentionally trying to harm the people that we've given everything to save.

LAVANDERA (on camera): What has been the worst experience you've had?

LYONS: The most difficult experience we've had is a patient family who, under a pseudonym, had made threats against the hospital. There was a reference to making sure the hospital was locked and we've got people that are coming for you.

LAVANDERA: Was it a death threat?

LYONS: I'm not sure how a person would take "We're going to come to -- we're going to march on the hospital. We're coming for you" as anything other than a death threat.


LAVANDERA (voice over): Barbara Chapman is a nurse practitioner and works at the University of Texas at Tyler. Last summer, she started a hotline offering teachers and healthcare workers mental health support.


CHAPMAN: I used to think of it as being overwhelmed. Healthcare workers are overwhelmed. That doesn't even address it. The way I address it now with folks when I talk to them is I refer to it as moral injury.

LAVANDERA (on camera): What do you mean by that?

CHAPMAN: We want to help folks. And now that folks aren't getting vaccinated, they're not believing us. They're questioning our education and our background. It's hurtful, we're exhausted, we're tired, and so we have been mortally injured.

LAVANDERA (voice over): Chapman says some nurses have endured so much abuse that even getting them to walk from their cars into work is a challenge.

CHAPMAN: It's like when a veteran comes back from the war, he may be out of the war, but he hasn't left that war.

LAVANDERA (on camera): Man, it's crazy to me that you're talking about a healthcare job as if it was walking into a battlefield.

CHAPMAN: It's a battlefield. It is a battlefield.

LAVANDERA (voice over): Dr. Jack Lyons often thinks of the pandemic's early days when grateful communities banged pots and pans to honor frontline healthcare workers.

LYONS: The vast majority of patients we take care of now come to our interactions distressed.

LAVANDERA (on camera): So yes, that feeling of goodwill is gone.

LYONS: Long since dissipated.


BERMAN: It is so disheartening to see our frontline workers under attack.

Ed Lavandera with us now, and why do these doctors tell you that they're not agreeing to these alternative treatments.

LAVANDERA: Everyone that we've spoken to on the medical side says you know, they sympathize with many of these people who are seeing their loved ones in their final hours and they are desperate for any kind of help.

But they say they are relying on a wide body of information, misinformation, bad information that exists online and they are demanding all of that, but they insist that they are sympathetic to all of this, but they have to follow their oath and that oath -- all of these medical professionals repeatedly told us is and that is to do no harm.

And they say in all these treatments, ivermectin is the most popular one right now that there is no proof that there is any upside to this. There's only evidence of a negative side effect, and because of that, they simply, in good conscience can't prescribe those kinds of treatments.

BERMAN: Ed Lavandera, like I said a disheartening report. We give our gratitude to these medical workers who are on the front line still, as frustrated as they are. Thanks, Ed.

Just ahead, the former President is singing a new tune on vaccines and boosters, something a lot of people wish he'd done earlier, but are now glad he is doing it at all. We'll discuss it with a doctor who was served as Surgeon General in the previous administration, next.



BERMAN: Before President appears to finally be urging people to get vaccines and boosters. Listen to how he push back on the suggestion during an interview of the far right outlet that vaccines may not work.


DONALD TRUMP (R) FMR PRESIDENT OF UNITED STATES: The ones that get very sick and go to the hospital are the ones that don't take the vaccine, but it's still their choice. And if you take the vaccine, you're protected. The results of the vaccine have are good. And if you do get it it's a very minor form. People aren't dying when they take the vaccine.


BERMAN: Earlier this week, he took boos from the crowd when he announced his booster shot. Both answers at odds with how he's previously avoided talking about vaccines or encouraging their use. In September, the Wall Street Journal asked him if he'd get a booster he told them quote, I probably won't. And back in March Dr. Anthony Fauci told CNN it was a quote, lost opportunity when the former president was quietly vaccinated away from the public eye months earlier.

He is now public endorsements come after a new report from the House Select Committee hammered his administration COVID response saying in part, it weakened testing guidance and promoted a dangerous herd immunity strategy without vaccines.

Among the source it quotes are e-mail sent by Dr. Deborah Birx, a former top health official during the final months of the administration. In one she calls the herd immunity proponents a quote, fringe group without grounding in epidemics public health or on the ground common sense experience. We will want to focus tonight now though, on the former president's most recent comments in support of vaccines and boosters.

Joining me is Dr. Jerome Adams, who served as U.S. Surgeon General under the former president.

Dr. Adams, nice to see you this evening. It was interesting, he came out in support of vaccines and boosters. It's he pushed back rather hard during that interview saying that they are effective. What's your takeaway?

JEROME ADAMS, FMR U.S. SURGEON GENERAL: Well, absolutely. And we've known Donald Trump for 75 years, we've known Joe Biden for 79 years. We know the President's love language is words of affirmation. We know Joe Biden is known for his cooperation. So to me, what was most shocking what was most telling wasn't that Donald Trump came out and supported vaccines. That was it, it took Joe Biden 11 months to finally do what he's been known to do for 79 years. And that's to reach out across the aisle.

Once he gave President Trump those words of affirmation, you heard President Trump come out and say, thank you. I appreciate that. And he applauded it. And I hope we see more than. I've been calling for it. I've been telling people all along, we can't reach the conservative parts of America if we only use and only reach out to engage liberal voices.

BERMAN: Come on, Dr. Adams, I mean, you're telling me that Donald Trump didn't praise vaccines or boosters, until Joe Biden decided to thank him for the vaccines. That's what he was waiting for?

ADAMS: Well, well, John, I am a psychiatry major. And again, (INAUDIBLE) psychology major and people have different words of affirmation, different love languages. That's the truth. That is when you saw Donald Trump change his tune. I'm not saying it's right. I'm not saying it's wrong. I'm saying you can't deny that that is when he changed his tune, and came out and supported vaccinations and regardless, that's a good thing.

BERMAN: Look --

ADAMS: The point that we should be discussing is how do we get more people out there on both sides of the aisle, talking about vaccinations and boosters because far too many people are unboosted 30%, 30% boost rate right now. That's not good enough. We're not anywhere near herd immunity, and that's why this virus continues to torment us.

BERMAN: Look, I have to tell you, I'll take anything that helps getting people out there to get vaccinated and boosted.

ADAMS: Me too.

BERMAN: But I have to say if it just took a thank you to get Trump to do it several 100,000 deaths later. It's pretty pathetic, isn't it?

ADAMS: Well, we can say it's pathetic. We can debate it back and forth. We can also say it's pathetic that it took this long for the new administration to reach out in any way shape or form. I talk to people in the White House. I can tell you from inside the White House there's a real political pushback at engaging anyone from the Trump administration, that acknowledging that they did anything, right. I'm hearing this from inside the White House.


And again, I've always said, Democrat, Republican, Biden's support a Trump supporter, we need cooperation, because the enemy is the virus. And at the end of the day, we can make a political story about this so we can say kudos to Biden, and kudos to Trump. And let's hopefully see more of this.

BERMAN: Look, given that that Trump waited so long to finally say this, will it have an impact do you think on those holdouts? ADAMS: Well, we know we saw that he got booed by some people out there. But I have to feel like if the two presidents can come together. I've talked to my fellow surgeons general, if we can come together, if people on both sides of the aisle can come together, then hopefully we can slowly start to break down these partisan divides that are between us and it make the enemy the virus and not each other.

BERMAN: So there is news tonight, the CDC has changed its guidance on how long health care workers have to isolate after getting COVID from 10 days to seven days. Do you think that's a good decision first of all?

ADAMS: Well, I think it's a decision that's been made necessary by the fact that the virus is spiraling out of control. It does follow the science that if it's seven days, but you have to test negative, and we're seeing more and more that the virus you don't need to be isolated for a full 10 days. But to me, what bothers me is what you talked about earlier, we're stressing out our health care workers, we're saying, look, we're going to have a different set of rules for you, not necessarily because of the science, but because we've let the virus run rampant, and we don't have enough support to let you stay out as long as we would tell everyone else to stay out.

I think there is science behind it. I think that what led us to it is still the fact that we don't have enough people boosted. We don't have enough testing. We don't have enough high quality mask out there for people and we're seeing this Omicron variant really rip through America.

BERMAN: Do you think that other industries should join suit here. The airlines, for instance Delta has written a letter asking for the guidelines to be changed so they can get their workers who were vaccinated and testing negative even if they had Omicron, if they can get them back online. United Airlines had to cancel 100 flights on Christmas Eve. So clearly, there's a need.

ADAMS: Well, again, the science suggests that we can shorten that window somewhat. We need to continue to follow the science. I don't understand again, why you would have a different set of rules for healthcare workers than for other people. I think the real key is something that they missed. And again, we need to be promoting better high quality mask everywhere because right now a single layer cloth mask just isn't cutting it against Omicron. We need more testing, we need better masking. That's how we get through this not by cutting out guidelines in making short cuts so that we can get people back to work sooner. That's not going to get us through this. It's just a band aid.

BERMAN: Dr. Jerome Adams, thanks for joining us tonight. Have a happy holiday.

ADAMS: Thank you. Get your booster, get your flu shot, get your vaxx.

BERMAN: Done it all man. And I'm wearing the good mask, the mask make a huge difference. Thank you so much, Doctor.

ADAMS: Take care.

BERMAN: So the January 6 committee and the former president have escalated their fight over his White House Records all the way to the Supreme Court. Details just ahead.



BERMAN: Today, the January 6 committee investigating the Capitol riot asked the Supreme Court to decide by the middle of next month whether it will take a -- will take a White House Records case brought by the former president. The request came hours after it asked the court to block the committee from getting about 700 pages of records. This follows losses into lower courts that did not agree with his claims of executive privilege. The committee is seeking activity long scheduled, speech notes and three pages of handwritten notes from them White House Chief of Staff Mark Meadows as they look into the former president's role in trying to overturn the election results.

Joining us now, CNN Supreme Court analyst Joan Biskupic and CNN political commentator Margaret Hoover.

Joan, what's going to happen here? Do you see the Supreme Court taking up this case?

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: Nice to see a John and (INAUDIBLE) here. It might be -- when they just can't resist. I mean, this is a major constitutional battle is a separation of powers issue. We've never had the Supreme Court rule on the question of former president versus current president over a claim of executive privilege. So the question is huge for the justices and for the country and for future presidents. But you're right about the kind of hand that Donald Trump goes into this with a losing hand, the precedent on this question from the 1970s when Richard Nixon twice had issues involving executive privilege when against him, and they would then lead the two lower court sets of judges to go against Donald Trump.

And I could even see under a scenario, John, but if this were, you know, kind of normal times, a unanimous ruling against Donald Trump, but that would mean that they would take it.

And one last thing I would mention is that in the requests that you mentioned, from the House Select Committee, it almost had the tone of accepting the fact that the justices might want to weigh in. But with the caveat, if you're going to weigh in, do it sooner rather than later, the clock is ticking on how long that select committee will be in power.

BERMAN: Very quickly, how quickly could they do it, Joan, if they wanted to?

BISKUPIC: OK, well, what both sides are saying his take it up in your January 14th conference, they could schedule it then for either the end of January or early February, the justices usually take a four week recess in February, they could hear it early February, they could then decided in a couple weeks. Back in 1974, the justices decided the Nixon tapes case just in a couple of weeks in July of '74. So they could do it -- we could know about the archives being been able to turn over those documents to the committee by the end of February if the court takes it if it doesn't deny it outright, which I think is dicey here.

BERMAN: So Margaret, obviously, the timeframe here is that the Democrats on the committee and Liz Cheney and Adam Kinzinger the Republicans want or need this to happen before next year's elections when the Republican might take over and make this committee just simply poof go away. The Supreme Court look it is interesting here because there are people will say oh it's a 6-3 conservative court they're just going to side with former President Trump on this. But there are actual genuine legal questions here they may want to address.


MARGARET HOOVER, CNN POLITICAL COMMENTATOR: Yes, and the court isn't so crassly political. I mean, this is one of the arguments you often hear the judges making, even as you listen to the most recent controversial hearing about on (INAUDIBLE) versus the -- this is the Planned Parenthood or the abortion case that they've most recently heard. I mean, the justices to themselves and two the American public are arguing that this court is bound by precedent and bound by legal rules and the Constitution that have nothing to do with who appointed each justice.

And I do think that it's right that they very well, especially in the Roberts Court, who a man who seeks to preserve the respect that -- the remaining respect the country has for its institutions, most especially the court will try to forge a consensus and try to forge a unanimous decision on any, frankly, anything that comes before him, but particularly something as controversial and as political and prone to partisanship as this.

BERMAN: How important do you think these records are at this point? To me, especially after we've now seen these Mark Meadows texts, ones that he willingly hand over -- handed over, the idea that there are 700 pages of things the former White House didn't want anyone to see, there could be a lot in there, Margaret.

HOOVER: It's enormously important. And John, and the reasons that it has nothing to do with partisan politics, it has everything to do with what was happening in those three plus hours. What was the President of the United States thinking, doing and telling people as violence was unfolding at the Capitol? We know they were trying to mount what effectively as a procedural coup, they were trying to slow down the counting of the balance of in transition of power.

But what did they think about the violence? Did they think the violence was helpful to them? Was there potentially a legitimate dereliction of duty, which by the way from the outside certainly seems obvious? What was actually happening on the inside, we won't know until we see those documents. And this is a matter of maintaining our Constitution, maintaining our integrity as a country. This is a matter that is absolutely fundamentally important to our country, to our future. And we need to note.

BERMAN: Margaret Hoover, Joan Biskupic, thanks to both of you for joining us tonight. Have a wonderful holiday to both of you.

BISKUPIC: Thanks, John.

HOOVER: Thanks. Happy holidays.

BERMAN: So millions of Americans are traveling for the holidays this year, a numbers not seen since before the pandemic. So as you travel and gather with loved ones, our report from Randi Kaye on just what we know about how the virus behaves as well as what masks to use and which ones to avoid.



BERMAN: This holiday season travel is nearing pre pandemic levels. According to TSA today is said to be one of the busiest of the holiday travel period. And they're anticipating 20 million people will fly between today and January 3rd. But the uptick in travel comes amid fears of the Omicron variants spreading rapidly across the country. And in addition to those 100 cancelled United flights I mentioned earlier, we just learned Delta has cancelled 93 Christmassy flights. They're making the move they say due to multiple issues, including Omicron.

So what do we really know about the virus and how its transmitted? "360s" Randi Kaye went in search of answers.


UNIDENTIFIED MALE: Heavy cough, three, two, one.

RANDI KAYE, CNN NATIONAL CORRESPONDENT (voice-over): Inside this lab at Florida Atlantic University, two engineering professors are measuring how coronavirus can spread through the power of a cough.


KAYE (voice-over): They fill a mannequins mouth with a mix of glycerin and water. Next, use a pump to force it to cough. Then wait and see how far the droplets travel. The droplets fill the air made visible with a green laser light.

Holiday travelers take note the droplets expelled advanced a distance of three feet almost immediately. Within five seconds the droplets had traveled six feet, then nine feet in just about 10 seconds. Remember nine feet is three feet beyond the recommended social distancing guidelines.

UNIDENTIFIED MALE: It's already reaching roughly nine feet now it's still moving farther slowly. KAYE (voice-over): The fog of droplets lingered in the air and can do so the professor says for several minutes. It took about 30 to 40 seconds to float another three feet.

UNIDENTIFIED MALE: It's getting closer to 12 feet now.

KAYE (voice-over): Yes, he said 12 feet. Over and over again, the simulated droplets blew past the six foot mark often doubling that distance.

UNIDENTIFIED MALE: OK and that's fast.

KAYE (voice-over): In fact, while the CDC says it's less likely, infections have been transmitted to people who were more than six feet away, even in people who pass through the area after the infectious person had already left. It's all part of why the CDC still insists on keeping your distance from others while traveling and wear a high quality mask.

UNIDENTIFIED MALE: Three, two, one.

KAYE (voice-over): Our professors tested masks to and it's easy to see why some experts say cloth masks and anything that's just a single layer offer so little protection. First we tested a single layer gator.

MANHAR DHANAK, CHAIRMAN, DEPT. OF OCEAN & MECHANICAL ENGINEERING, FLORIDA ATLANTIC UNIV.: This Gator is a bit surprising because it came to let everything through without any stoppage.

KAYE (voice-over): Next up, a single layer bandana, made of 100% cotton.

DHANAK: What you see there is that this whole thing cotton one layer mask performed a little better than the gator. You still get some leakage coming through it filters. Some of the droplets but some escaped through with a single layer. They don't go very far but probably about six inches from the face when you're just talking.


KAYE (voice-over): This double layer mask made of quilting cotton also spread respiratory droplets when the mannequin talked and coughed, but not as badly as the gator and the bandana.

DHANAK: It doesn't go very far, probably about two to three inches from the face. So significantly better than the other mask.

KAYE (voice-over): And what about those blue surgical masks so many people are wearing on airplanes and in airports. They did well, but there's room for improvement. When the mannequin coughed, not much went through the mask, but quite a bit leaked out the top.

Bottom line, experts suggest grabbing a KN95 or N95 masks if available before hitting the road. And keep your distance from your fellow passengers. And maybe even your family. Randi Kaye, CNN, Palm Beach County, Florida.


BERMAN: Good advice.

Just ahead if we remember the life and words of a literary icon.


BERMAN: Finally tonight, remembering a literary giant, Joan Didion, whose indelible essays books and reporters chronicled for decades the simmering tension of American life and made her a cultural icon, she died today at her home in New York. Her publisher said the cause was Parkinson's disease.


Didion was a pioneer of what was known at the time as New Journalism. Her numerous best selling books included Slouching Towards Bethlehem, The White Album and Salvador. In recent years, she would perhaps most famous for 2005 book, The Year of Magical Thinking, a heart rending account of the grief that followed the sudden death of her husband, writer John Gregory Dunne. In it Didion wrote, when we mourn our losses, we also mourn for better or for worse ourselves as we were, as we are no longer as we will one day not be at all.

Joan Didion was 87.

The news continues. So let's hand it over to Michael Smerconish in "CNN TONIGHT."