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Anderson Cooper 360 Degrees

Trump Pleads Not Guilty In January 6 Probe, Next Hearing On August 28; Trump Pleads Not Guilty To 4 Felony Counts In Election Case; Next Trump Hearing Is Aug. 28, 5 Days After First GOP Debate. Aired 8-9p ET

Aired August 03, 2023 - 20:00   ET

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

ERIN BURNETT, CNN HOST: It is the first time that a former President, right, has been indicted for something that he did in office. It is a historical moment.

ELLIOT WILLIAMS, CNN LEGAL ANALYST: A lot of historic firsts happening today, Erin, and I think that that's the takeaway, regardless of what was sitting on the desk in front of him.

BURNETT: All right, well, thanks very much to all of you and to all of you for being with us for this special coverage, which continues now with AC 360.

[20:00:22]

ANDERSON COOPER, CNN HOST: For the third time this year, the 45th president of the United States has been arraigned on felony charges, this time for alleged crimes against democracy itself.

Good evening in New York. I'm Anderson Cooper along with Jake Tapper in Washington.

JAKE TAPPER, CNN ANCHOR: I'm Anderson, unlike the first two arraignments in New York and Florida, this one was held within view of the crime scene. The US Capitol at a federal courthouse where dozens of members of the violent mob, that he incited -- that he incited -- hundreds really have already been convicted and sentenced to prison.

COOPER: The actual proceedings which were led by a magistrate judge took 27 minutes. The former president pled not guilty to four counts connected to his attempt to overturn the election that he lost.

His next court date set for the 28th in front of the trial judge, Tanya Chutkan, who is expected to set a trial date.

TAPPER: Now, a short time later, after the (sentencing), on the tarmac at Reagan National Airport holding an umbrella handed to him by his body man and documents case co-defendant, Walt Nauta, Mr. Trump made the following remarks starting with a slur about the nation's capital.

(BEGIN VIDEO CLIP)

DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: This is a very sad day for America AND it was also very sad driving through Washington, DC and seeing the filth and the decay, and all of the broken buildings and walls, AND the graffiti. This is not the place that I left. It's a very sad thing to see it.

When you look at what's happening, this is a persecution of a political opponent. This was never supposed to happen in America. This is the persecution of the person that's leading by very, very substantial numbers in the Republican primary and leading Biden by a lot.

So if you can't beat him, you persecute him or you prosecute him. We can't let this happen in America, thank you very much.

(END VIDEO CLIP)

TAPPER: An interesting idea that there was no graffiti or trash on the ground in Washington, DC until after he moved out of the town, Anderson, but as you pointed out earlier, when Trump left Washington on January 20, 2021, the district was under heightened security, out of concern that the inauguration might prompt a repeat of the January 6 riot.

COOPER: Jake, the former president is now back at his golf club in New Jersey. CNN's Kaitlan Collins is outside of the federal courthouse in Washington, where she has been covering events all day.

Kaitlan, what are you hearing from the former president's aides and allies about how today went?

KAITLAN COLLINS, CNN ANCHOR AND CHIEF CORRESPONDENT: Anderson, it was pretty much as they expected when it came to the actual proceeding, the nuts and bolts of what it looked like once the former president was here in the courthouse behind me. Of course, they expected him to plead not guilty. He actually did it himself here, which is not what he did in Miami. Instead, his attorney did it then. He himself said the words though, when he was in this courthouse behind me.

And for the president himself, I'm told, he is obviously not happy that he had to come here to Washington today, as he made clear in his remarks there and subsequent remarks that he's made online about the city, but the idea that he would prefer not to have had to show up in person for this.

It's just another indictment, another reminder of his growing legal troubles that he is facing, and he is talking online about how they're benefiting him politically, but they are weighing on him, Anderson, and he had this dejected look on his face as he got out of the motorcade to go back to the airport, to go back to New Jersey.

And I should note that those remarks you heard there earlier, that was all he said. He did not take any questions from reporters, and that is despite the fact that they had been planning for him to take a few questions from reporters when he got to the airport. It's unclear what changed that plan, but certainly something did.

COOPER: The prosecution wants a speedy trial. It certainly seems clear the defense wants to delay as much as possible, no?

COLLINS: Absolutely. I mean, there's no doubt that they want to delay it. We watched it happen in the documents case in Florida. The difference though, is there is no co-defendant to help drag it out. He actually had a little help with Walt Nauta getting a Florida attorney in Florida and having that, delay that by several weeks.

Here, it is just him. He is the only defendant. Those co-conspirators who were listed in the indictment have not themselves been indicted, and this is actually probably the most abnormal part of the entire day.

You know, the one part that wasn't expected was there was a bit of a dispute between his attorney and the judge talking about the timeline for this trial, and she was talking about the next appearance and just you know, several weeks from now, potentially setting a trial date then and his attorney was making the point that they wanted to make sure they had enough time. That's John Lauro, who has argued to me that he believes it could take nine months to a year to try this case.

Of course, this is all going to be up to the judge here who has a very quick timeline, typically for these kinds of things.

[20:05:05]

COOPER: We should point out, the former president has already been criticizing the trial judge on Truth Social. Is there any reason to think his lawyers will ask him to cut that out? Or even if they did, would that matter?

COLLINS: It certainly wouldn't matter. I mean, he has had attorneys before who have asked him not to attack prosecutors or not to attack judges. I mean, he is attacking Jack Smith, who he sat 15 feet away from today.

I talked to his people in his orbit, people who were on his legal team, people who are on his legal team about this before and obviously, they don't think it's a good idea to attack the judge and to attack the prosecutor, but also, their client is Donald Trump, and there is not really a way to stop him from posting online.

I mean, you've heard the judge today saying not to threaten any witnesses, pretty standard language, but making sure that that was something that was said while the former president was in her courtroom. And as we know, there is a massive number, a massive list of witnesses in this case, including people who worked for him, people who were the closest to him, and people who still work for him -- Anderson.

COOPER: Kaitlan, thanks so much -- Jake.

TAPPER: Anderson, thanks so much.

With me here tonight, CNN senior law enforcement analyst, Andrew McCabe; CNN chief legal analyst, Laura Coates; CNN chief political analyst, Gloria Barger; and CNN special correspondent, Jamie Gangel. Let's start with something I thought was very interesting in the proceedings today, Laura Coates, which is the judge not only recited the four charges laid out in the indictment, but also the maximum sentence, potentially for anybody found guilty, convicted of them.

This includes conspiracy to obstruct an official proceeding, which is a maximum of 20 years; obstruction of an official proceeding, maximum of 20 years; conspiracy against rights, meaning his ability or his attempt to take away the voting rights or the rights of individuals to have their votes counted, that's 10 years. That's a max of 50 years of those, I think three charges out of four.

Is that normal to give all of the charges and the maximum sentence?

LAURA COATES, CNN ANCHOR AND SENIOR LEGAL ANALYST: It is standard to provide the defendant with as much notice as possible so that they know the full scope of their actual charges. And note, of course, also she asked him his age, he stated it. If you just were to do arithmetic on that, the idea, if the maximum were in fact imposed, it's really a life sentence for this particular individual, but there is no --

TAPPER: Seventy-seven.

COATES: Seventy-seven years old.

TAPPER: Which is for anyone wondering, yes.

COATES: But I will say that it is highly unlikely that any of those maximums would normally be reached, although this is a judge who in the course of trying and overseeing different cases in the January 6 court proceedings, she has gone above even what prosecutors have recommended.

She has been very clear and firm about the gravity assigned to these charges, and these are very serious charges against anyone, let alone a former president of the United States. And so by providing that notice, it's a kind of due process, and by the way, it is shocking to many people to hear that, but this is the experience of most defendants in courtrooms where they are now confronted with the reality that they are now on the other side of United States versus.

TAPPER: And Andrew McCabe, there has been a lot of talk today about how Donald Trump is being treated as others would in the justice system, and to a degree that's true, but also in other ways, he is getting benefits of the doubt that other defendants would not, right?

I mean, first of all, he was released just on his own recognizance, right?

ANDREW MCCABE, CNN SENIOR LAW ENFORCEMENT ANALYST: That's absolutely right. So in this significant way, the fact that he has to appear here in DC to be arraigned and be informed of these charges and to be processed. All those things are normal procedure that every defendant in a federal criminal matter has to do.

But as you mentioned, there are some notable differences here. He has not been subjected to a mug shot in either this case or the case in southern Florida as far as we know. It's questionable as to whether or not he was fingerprinted today as part of his processing.

There is an argument to be made that well, he is so well known that it is not necessary to have this identifying information, but released on your own recognizance when you have the ability to hop on your own 757 at any minute and go pretty much anywhere in the globe you want to go. That's a pretty big extension of courtesy or liberty to this defendant.

So no matter how hard the prosecutors in the system, try to conform this prosecution to the standard route that all criminal defendants in the federal system go through, I think it's always going to be slightly different because he is a former president.

TAPPER: And Gloria, one of the things that's interesting is so they're pushing forward on this First Amendment defense. Who knows what they're actually going to do, the Trump lawyers when it comes down to a courtroom, but in the court of public opinion, at least, they've been talking about a First Amendment defense.

You're prosecuting him for things he said, and you can't do that. He has a First Amendment right. Here is what Trump's then attorney general, Bill Barr, not on January 6, but in the days weeks leading up to January 6 told Kaitlan Collins last night when asked about this First Amendment defense.

[20:10:04]

(BEGIN VIDEO CLIP)

WILLIAM BARR, FORMER US ATTORNEY GENERAL: As the indictment says, you know, he -- they are not attacking his First Amendment right. He can say whatever he wants, he can even lie. He can even tell people that the election was stolen when he knew better, but that does not protect you from entering into a conspiracy.

All conspiracies involve speech, and all fraud involves speech. So, you know, free speech doesn't give you the right to engage in a fraudulent conspiracy.

(END VIDEO CLIP)

TAPPER: Well, there goes that theory.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: They have ripped that apart. Yes, look, he said, Donald Trump can lie. We know that Donald Trump lies, he can lie all he wants. He can lie to the press, he can lie to his friends, he can lie to people, you know, who work for him.

But he said, that's kind of beside the point. That's almost irrelevant. I mean, this was, according to the former attorney general, and he seemed to believe it was laid out pretty clearly, a conspiracy.

And if you want to have a conspiracy, you've got to conspire with other people, and we all know from looking at this indictment pretty closely, that there's a big blank here for unindicted co-conspirators.

TAPPER: Oh, let me hold it up so people can see.

BORGER: You can hold it up. I have some scribbles on mine.

TAPPER: Oh, you've scribbled on yours, so I'll just show mine.

BORGER: Yes.

TAPPER: The point is, there's a lot of blank space right here.

BORGER: There is a lot of blank space.

TAPPER: If they want to put in some new defendants.

BORGER; So if they do want to put in some conspirators, well, co- conspirators, they've got the room for it.

What they don't have is the time and they want to move this case very, very quickly, unlike the president's attorneys, who wants to delay, delay, delay, but there is an argument that if they had put down all of those other conspirators on the list, then it really would have delayed what they want to do, which is talk about Donald Trump.

JAMIE GANGEL, CNN SPECIAL CORRESPONDENT: Can I just add one quick thing? That was Bill Barr, Donald Trump's former attorney general, who is not only a conservative Republican, but he was hardline. He supported Donald Trump in every way that he could over and over. He was aggressive.

TAPPER: During the first -- during the first impeachment.

GANGEL: During the Mueller --

TAPPER: During the Mueller investigation.

GANGEL: Yes.

BORGER: He only left in December, at the end of the term for --

GANGEL: For him to in effect, obliterate the defense that Trump's lawyers are putting out there now. It just -- it says everything, but there was something else he said in that interview. He said -- Kaitlan asked about whether I think Donald Trump could take the stand or Bill Barr brought up if he would take the stand. And Bill Barr made very clear, that would not be a good idea.

TAPPER; To have Donald Trump take the stand.

GANGEL: Right, so what we're seeing here, whether it's Donald Trump or his lawyers or Republican elected officials, this is the political court. This is speaking to their base, to their supporters. This is not what's going to go on in the courtroom.

MCCABE: But there is a reason for that, right? Because Donald Trump's first primary and most important legal defense is to win the presidency in 2024. That's his Hail Mary pass for getting out from under both of these federal cases, because if he wins the presidency, he knows both cases go away overnight, if they haven't already concluded.

COATES: Important word though, federal cases, right?

MCCABE: That's right.

COATES: Because there are other cases and matters, including Manhattan and there is the decisions that we made by Fani Willis out of the Fulton County DA's office, what they will do, and that would not essentially immunize him from that.

But when we're talking about political speech, as a talking point, it does actually mean something in the law. It doesn't mean that anytime a politician speaks, it becomes political speech that no one can touch.

There are some very clear reasons as to why they want to protect and be very mindful of protecting political speech. We do not want people thrown into jail because they went against the king. We remember those law, I don't personally remember, but we remember reading about when history meant something.

GANGEL: I do.

COATES: No, you not, Jamie Gangel, but thinking about all of these aspects of it, but the notion of political speech essentially means you can certainly redress your grievances, you can criticize the government, you're entitled to your opinion, but not the facts that are converted into action that actually creates criminal liability.

TAPPER: Yes, I mean, just to point out what Bill Barr was talking about. There is a point three in the indictment, where and remember this is an indictment. This is from a grand jury. Right? They handed -- so this is from American citizens, and they give this to the to the special counsel. I'm just going to read.

The defendant, Donald Trump, had a right, like every American to speak publicly about the election and even to claim falsely that there had been outcome determinative fraud during the election and that he had won. He was also entitled to formally challenged the results of the election through lawful and appropriate means such as by seeking recounts or audits of the popular vote in states or filing lawsuits, challenging ballots and procedures.

[20:15:11]

Indeed, in many cases, the defendant did pursue these methods of contesting the election results. His efforts to change the outcome in any state through recounts, audits, or legal challenges were uniformly unsuccessful.

So they're saying, they say right here as a third point, he is not in trouble for lying.

BORGER: No.

MCCABE: That's right. And let's be very clear about this, the Federal Criminal Code has many statutes that criminalize a speech is not protected, right? Every fraud requires a statement as part of the crime. So, if I call you up, Jamie and I lie to you on the phone for the purpose of stealing money from you, that's wire fraud. My lies to you are not protected speech.

If I threatened you, Gloria, in return to force you, to coerce you to give me something of value, that's extortion. My threat to you is not protected speech.

And that is the case that they are making in this indictment. His speech is not protected because it is part of a crime.

TAPPER: Right, and just to put a period on it. There's a different channel, Fox, $787.5 million they paid to Dominion Electronic Voting Systems because of the defamation that they platformed and made themselves, some of their hosts against that company.

Free speech is a right that we enjoy in this country. It is not an unlimited right -- Anderson.

COOPER: Before airtime, House Speaker Kevin McCarthy spoke on the subject. He falsely equated former President Trump's actions after the 2020 election with the losing campaigns of Hillary Clinton and Al Gore. Take a look.

(BEGIN VIDEO CLIP)

REP. KEVIN MCCARTHY (R-CA): That I can say the same thing that Hillary Clinton says about her election that she lost. I can say the same thing about the DNC who said it about the 2016 race. I can say the same thing about those in the Democratic Party from the leadership on down about George Bush not winning, that Al Gore did. But were any of them prosecuted? Were any of them put in jail?

When Hillary Clinton said it, nothing happened to her. When they said it in Georgia's election, nothing happened to them either. You know what when the DNC said it, nothing happened to them either.

(END VIDEO CLIP)

COOPER: Speaker McCarthy just a short time ago.

Here with me, CNN political commentators, Van Jones, Alyssa Farah Griffin, Adam Kinzinger, and David Urban; also, legal analysts, Elie Hoenig, Karen Friedman Agnifilo.

Congressman Kinzinger, what do you think of the --

ADAM KINZINGER, CNN SENIOR POLITICAL COMMENTATOR: Oh my gosh. I can't -- watching that, I can't do it. I mean, he knows better. He knows that's complete garbage. And --

COOPER: Those are all just -- that's red meat talking points thrown to --

KINZINGER: Yes, and even the base would look at that and go, that's not the same thing. It doesn't make an ounce of sense. And you can see how angry he has been getting lately, by the way when he speaks, Kevin, and it is very rare for him to get angry when he speaks, but he's been doing it more and more.

And my guess is, this is tearing him up inside. He's mad, not at the people who are asking the question. He's frankly mad that he has to come up with that lie and stand there and say that.

And as I think Marco Rubio tweeted even yesterday, because some actors did a video where they were asking the electors in 2016 to vote, you know, for Hillary Clinton instead of Donald Trump and he was equating that -- that's very different. It's okay to ask electors to switch their vote, it is not okay to create fake electors and attack the Capitol to get your way.

ALYSSA FARAH GRIFFIN, CNN POLITICAL COMMENTATOR: You're not even convinced Kevin McCarthy believes watching that. I mean, we saw this kind of echoed similar talking points, Elise Stefanik, put out a strongly worded statement. They're using all the same terminology we'd expect -- "witch hunt." This is to distract from Hunter Biden. This has absolutely nothing to do with Hunter Biden. They were all there in the Capitol.

I'm old enough to remember when Kevin McCarthy said, and we have audio of him saying, I am done with this guy, talking about Donald Trump. He bears responsibility for this day. But now that's just out the window.

I mean, I don't know how Republican supporters of someone like McCarthy see those two things and kind of like, put them together because it's just a direct contradiction and it is so shallow.

COOPER: And yet David Urban, I mean, this is repeated time and time again.

DAVID URBAN, CNN POLITICAL COMMENTATOR: So the RNC, I mean, I know Congressman Kinzinger is losing his mind over here.

KINZINGER: I am.

URBAN: But I think, you know, a lot of this is I was going to say, to the average American distinction without a difference and these in these previous videos. If you watch the Martin Sheen video, kind of the hundred celebrities kind of plead -- having faithless electors, Electoral College, if you watch the, the RNC has a video out, which I saw on social media, about a half hour of from 2016 on that period, saying Trump is not a legitimate president, we need to resist.

All the resistance movement and all of those things and contesting his presidency from the outset. The articles in "The Washington Post" saying Trump needs to be impeached today, right, and on and on and on. That's what's going to be fed. I'm not saying it's correct. I'm saying that's what's being fed to Americans. And this, I know that our legal experts think this is a well-crafted legal document. I'm sure it is, but to most Americans, it is white noise. It is just white noise.

[20:20:10]

GRIFFIN: I disagree that most Americans don't remember that the Capitol was stormed and that false electors were put up.

URBAN: No, no listen. I agree. The January 6 part, I don't disagree with --

GRIFFIN: But I think that --

URBAN: There's a disconnect here. This is not a January 6 indictment if you read it. This is about a fake elector scheme. This isn't about storming the Capitol.

KINZINGER: Here is the problem. The problem is, it is both.

URBAN: Not really. No, it isn't. It is not what's charged.

KINZINGER: It is like and they are going to throw --

GRIFFIN: ... the issue not just the speech, it's the fact that they tried to over --

URBAN: You're going to -- Congressman Kinzinger said he would like to see a subsequent indictment.

KINZINGER: I would. They're going to throw tons of garbage out there. The point isn't that it's not going to confuse people, it is. That's the whole strategy.

The problem is, hold on, let me finish, the problem is leaders like Kevin McCarthy have to be the ones to go out to people and show the difference and tell the truth.

We are letting leaders off the hook because we're like, oh, well, you know, it's -- like, no. Don't be in leadership if you're unwilling to say the hard truth to people.

COOPER: In terms of the legal battle ahead, obviously, the judge would like a speedy trial, the government would like a speedy trial. The judge also used to be a defense lawyer, so looks after the rights of the defendant and says, well, how speedy a trial can there be and exactly who decides that?

KAREN FRIEDMAN AGNIFILO, CNN LEGAL ANALYST: So the judge said, you have a week to tell me, Mr. Prosecutor, how much time you think this trial will take, and then the defense has a week after that to tell them and she's going to take that information and use that to build a trial date.

Now, I know one of the defense attorneys, John Lauro, has been saying this trial could take nine months to a year. But let's think about it for a minute.

The prosecution has the burden of proof. The prosecution is the whole show. They put the whole trial on.

The defendant doesn't have to do anything, they don't have to open, they don't have to cross examine a witness, they don't even have to put on a defense at all.

So really, the question for a judge is how much time government is your case going to take? And that's really the critical part. And then you ask the defense, what defense are you going to put on, if any?

COOPER: It seems very likely they would put on the former president.

AGNIFILO: Exactly. And are they -- let's say Jack Smith says this is a six or eight-week trial, which I think that's probably right around what he will say, what the defense attorney is going to say, so I have another six months' worth of evidence that I'm going to put on. What is he going to put on?

And so at a certain point, that argument, the judge will push back on that and say, let's be realistic. You don't have to commit to exactly what you're going to do, but if you were to put on a defense, how much time do you think it would be?

And I think the judge can do a fairly educated guess of how much time this would take and how long it would be. Same thing with the pretrial motions. We all know, we could -- Elie and I could sit here right now and tell you what the pretrial motions would be. It's obvious what the arguments are going to be, you know, First Amendment, free speech, you know, advice of counsel, is another one, I want to change of venue, you know, because I can't get a fair trial here.

I want -- judge, you're recused, because you're biased and you said the thing about, you know, presidents aren't kings, and, you know, he'll make so many different arguments that are just very obvious, and the judge will give him enough time to make those arguments.

You know, you could do that in two months, for example, and the government could probably respond in another two months. Jack Smith is going to give over all the discovery. There's no reason this case can't go in January, February, and be done before the first vote is cast even in early voting.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: The judge's role at a trial is sort of like a ringmaster. You're trying to wrangle aggressive, opinionated parties that have not just their own agendas, but competing agendas, and one of the challenges for a judge is how do you keep control of your trial?

I've had judges who cannot control their courtroom and let defense lawyers, maybe some prosecutors run roughshod and it is a nightmare. I've had other judges who have been strict, strict but fair, and said we're going to get this done in X amount of time. I'm going to give you one week, I'm going to give you two weeks, I'm going to give you two hours to give your closing argument, not eight hours. And so a lot is going to lie on the hands of Judge Chutkan and by all indications she is a firm, tough in control judge. I've talked to people who've appeared in front of her. You can see it in her ruling. She is a no nonsense, no BS judge and so I think she's going to -- and she knows we're all watching. And so I look for her to push the pace here.

COOPER: Van?

VAN JONES, CNN POLITICAL COMMENTATOR: Yes, I'm still reflecting on my colleagues here and the passion of over there, and this is kind of required for us to get through this next 18 months, it is going to require us doing something that we're just not that good at as a country, which is nuance. It is in fact true.

There were progressives working to delegitimize Trump from the very beginning, it is true, and they were not prosecuted. That is true. And there were conservatives working to de-legitimize Obama from the beginning, including Donald Trump, who said he didn't have a birth certificate, and they weren't prosecuted either.

It turns out there's a lot of speech that's not prosecuted, but what you won't be able to show is a Democratic president sitting in the Oval Office trying to hold on to power in the way that Donald Trump did, or, frankly, a Republican president, or, frankly, any president in the history of the country, and that's the truth.

And so the problem is, to your point, Adam, there's going to be a lot of stuff thrown out there online, on social media, et cetera, and we're going to have to sit here and look at it. You know, two things can be true, yes. A lot of horrible stuff was said about Donald Trump before he had a shot. Some even turned out to be, frankly, quite correct.

Also, a lot of horrible stuff is being said about Joe Biden right now. Nobody's going to jail for it. There is one person being charged in this country, and is the one person who has done something that no president has ever done an that's Donald Trump.

URBAN: Anderson, quick question to the lawyers here. So how much discovery is too much discovery, right? Because that's what I hear from the Trump folks, right? It is like, this is great for us. Now, we get to open the Pandora's box of election fraud and America will see what we've been saying the whole time. Right?

That's what you've seen and you've heard, and I suspect that if the judge disallows extensive discovery, that the Republicans will say, aha, see, there it is. They're not allowing us to show America what's really going on. So how much is too much?

HONIG: Discovery is everything to put it in one word. As a prosecutor, you have to turn over essentially everything you have to the defendant, but I think the question you're raising is a really good one. How much leeway will the judge give the defense in going -- let's say the defense says, judge, we want to prove that the election was stolen in some of these seven states. Will the judge allow them to go down that road, which would vastly expand this trial?

COOPER: They could say we want to go to each of these seven states.

URBAN: Yes.

HONIG: And -- exactly, right, and it's within the judge's purview to say no, I find that's not a valid defense, I find you've not given me at least a nugget of information that I can work with, so big ruling.

URBAN: And then when that happens --

COOPER: Given the fact that there have been dozens of court battles about this by the former president's attorneys and allies --

JONES: Already.

COOPER: None of which really have gone in their favor. Does that --

AGNIFILO: More than 60.

COOPER: Yes, more -- does that make it easier for the judge to decline their efforts?

HONIG: Yes, I think she can look at that. I mean, she has to consider this and, you know, each one of them was on its own procedural footing. But yes, I guarantee you prosecutors are going to remind the judge, hey, they tried this 60 times they got nowhere, judge, why would --

I mean, look, if the judge allows that, this thing is going to spiral way out of control, which is why the defense is going to ask for it. For that reason, Anderson, I don't think the judge would allow it.

URBAN: If the judge disallows it, though, be prepared, because the other side is going to say, a-ha, they are covering up.

COOPER: Karen?

AGNIFILO: But it is in the indictment, right? Jack Smith spends many pages going state by state, describing in the indictment, every state in painstaking detail of what he did to try and steal the election. That is going to -- there is going to be little mini trials within this trial about each of them, but I think it's okay, and you can you can still do it in a way that I think is not going to drag this out forever.

And a point I think you guys were making was the charge that's not in here is either the Insurrection Act or seditious conspiracy, and I think that's the -- those are the charges that really relate to the storming of the Capitol and the violence on January 6, and there are a lot of lawyers who think it should not have been charged and Jack Smith did the right thing by not doing it.

And there are some people who think that he should have charged it, because really, that would take the First Amendment argument off the table. Right? And that really is what this is about. It's about the violent overthrow, you know, trying to stop the election with violence and it wasn't charged there.

And I do think -- I think legally, Jack Smith was right because tying him to say that he was in a conspiracy with, you know, Stewart Rhodes, and the Oath Keepers, et cetera, I think that would be hard to prove that he said yes, go be violent.

But at the same time, I do think it is -- it does sort of ask that question about well, why wasn't he charged with that on January 6th?

COOPER: We're going to take a quick break.

Coming up next, former attorney general, Alberto Gonzales who served in the George W. Bush administration, his take on today in the case ahead.

And later, Congresswoman Zoe Lofgren, who served on the House January 6 Committee which blazed a trail for the special counsel to follow.

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[20:32:49]

COOPER: We've been talking some length already about what the former president's legal defense might be based on what he and his attorneys have been saying.

JAKE TAPPER, CNN HOST: One, as you know, hinges on whether or not he believed he'd lost the election. Here's what his former Attorney General William Barr had to say when our own Kaitlan Collins asked him about that last night.

(BEGIN VIDEO CLIP)

KAITLAN COLLINS, CNN HOST: Do you think he knew that he lost the election?

WILLIAM BARR, FORMER ATTORNEY GENERAL, TRUMP ADMIN.: Do I personally believe that? Yes, at first I wasn't sure, but I have come to believe that he knew well that he had lost the election. And now, what I think is important is the government has assumed the burden of proving that.

COLLINS: Which is a high bar, of course.

BARR: That's a high bar. Now, that leads me to believe that they -- we're only seeing a tip of the iceberg on this.

COLLINS: Do you think Jack Smith has more?

BARR: Oh, yes.

(END VIDEO CLIP)

TAPPER: You could call that the George Costanza defense. It's not a lie if you believe it. In a moment, Anderson, of course, is going to be joined by former George W. Bush Attorney General Alberto Gonzales.

But first, as we mentioned, the former president is back at Bedminster in New Jersey this evening. CNN's Alayna Treene is nearby and joins us now. Alayna, what do we know about Mr. Trump's mood this evening?

ALAYNA TREENE, CNN REPORTER: Well, Jake, I think you could kind of see it clearly today playing out. He was somber in court. Our great reporters who were inside the courtroom said that he appeared glum. He had his arms crossed over him. And that lines up with what I'm hearing from Donald Trump's advisers.

I've been speaking with them for the past several days now, and they tell me that he is very concerned about these charges. And privately, he's been really frustrated. He's frustrated not only about what this means for him personally and politically, but also what it means for his legacy.

And I know from covering Donald Trump for several years now, he thinks about that a lot, and that has been weighing on him today. But I'll also point out that publicly, you're still going to see the defiant Donald Trump that he likes to show voters and show viewers.

That even when he was speaking with reporters after his appearance later tonight, he still, you could tell, wasn't using the bravado that he normally does. But on true social and in his post, he is using that defiant rhetoric that he often tries to portray when he's talking about these different charges.

[20:35:07]

But his team, on the other hand, they're angry, too. They are fired up about these charges, but they're also trying to maximize the political benefit of them. We know from the past two indictments, and this one included, this third one that he now faces, he is seeing a boost in the polls, and he knows that he can fundraise off them.

So they're issuing -- they're ramping up their fundraising appeals, reaching out to donors and also trying to drum up support from Donald Trump's base. Jake?

TAPPER: Yes, I mean, we should clarify. He's seeing a boost in the polls of Republican voters. He is not seeing a boost in the poll --

TREENE: Right.

TAPPER: -- of overall voters, particularly independent voters, whose votes he will need if he does actually become the nominee.

Alayna Treene, thank you so much. Appreciate it. Anderson?

COOPER: Joining us now is Alberto Gonzales, who served as attorney general during the George W. Bush administration. Judge Gonzales, based on allegations -- we're having trouble with his audio. Let's go back to Jake.

TAPPER: OK, as we've been discussing, key for prosecutors will be Donald Trump's statements and actions related to the fake electors plot in seven states. Officials in one of those seven, Michigan, the Wolverine State, have already charged 16 individuals in that investigation, the fake electors investigation.

And today we learned they have charged a third person in a separate part of the investigation, not that same one about fake electors, but about a separate conspiracy to seize and access voting machines in Michigan after the 2020 election.

I'm joined now by Michigan Attorney General Dana Nessel. Attorney General Nessel, so, first of all, we should note that because one of the three individuals charged with trying to seize and access voting machines was your opponent for attorney general in 2022, you have recused yourself from that investigation. And I just want to note that for our viewers.

But I do want to ask you just about the contours of that investigation since the special prosecutor DJ Hilson has been out there talking about this case. Can you give us any idea, even though, again, I know you've recused yourself, but just as the Michigander I have on the show this evening, what are they charged? Like, why were they trying to access voting machines?

DANA NESSEL, MICHIGAN ATTORNEY GENERAL: Well, first of all, let me say that there are a lot of parallels that I see between Donald Trump and his activities and the things that we've seen in regard to this recent indictment against him and then what his soldiers were doing on the ground in the seven targeted states, including, of course, Michigan.

Now, the allegations involving the former Republican nominee for attorney general and one of Trump's campaign attorneys, as well as a former Republican state representative, really involve illegal access to tabulators and then an effort to tamper with those tabulators, run tests on those tabulators, and ultimately damaging those tabulators so that they be replaced. Those are essentially the allegations.

But what was interesting, of course, in the case involving my former opponent was really the timing, because it reminds me a lot of Donald Trump. You know, you look at the timing of when these alleged acts occur, and then shortly thereafter, he makes an announcement he's running to be the Michigan attorney general.

Therefore, meaning, that I can't continue my investigation because now, by virtue of that, I'm running against my opponent. And so it has to go to a special prosecutor.

TAPPER: Interesting. You can, however, talk about -- I mean, I should also just note that this idea about seizing the voting machines after the election is one that Donald Trump was talking about in the Oval Office when he was talking about potentially declaring martial law and seizing voting machines in various battleground states. So it's interesting that, as you note, his foot soldiers were trying to do the same thing.

This fake electoral scheme, which you are, as attorney general, completely involved in, and you announced charges against these 16 individuals in July. They too, were part of this alleged conspiracy, right? So what was the plan there? And were they aware of the fact that they were going to be put forward as fake electors even if Trump did not prevail in court cases in Michigan?

NESSEL: Well, you know, while I can't get into all the facts and all the details of this case that is now pending, what I will say is this. Firstly, very clearly, this is a coordinated campaign that started at the top, you know, started with the former president of the United States, and then went into all of these other states.

[20:40:07]

Additionally, just as we've seen in this criminal indictment, what we saw in Michigan was honestly overwhelming evidence of, you know, a large number of crimes. And what I said when I announced the charges a few weeks ago and what I'll say again now is this. When you hear Donald Trump talking about these charges being political in nature, here's what I would say.

The most political thing that Jack Smith could possibly do in the face of overwhelming evidence of guilt would be not to charge Donald Trump at all. That, in and itself, would be something that would be political. When you have somebody who is clearly guilty of a number of federal offenses, what you do is you charge them. And the only reason that you would not charge them is because you were making a political calculation.

TAPPER: Yes. We should note that, as one of the panelists on Anderson's panel said just a few moments ago, you know, the indictment -- and every American should read it for themselves -- goes state by state on these battleground states and talks about Donald Trump's efforts to steal Joe Biden's victory in those states, Michigan's pages 17 through 19.

I know you disagree with the Michigan House Speaker and the Michigan Senate Majority Leader on probably 95 percent of the issues, but do you give them credit for standing up against what must have been a very intense pressure campaign from Donald Trump to flip the results and, you know, undermine the election there?

They -- I realize we're in low bar territory when we praise people for not breaking the law and for doing their jobs, but do you at least give them credit for that?

NESSEL: Do I give them credit for not violating the law and for abiding by the norms of our society and the Constitution? Yes, I mean, I think, obviously, I applaud them for standing firm and not trying to intervene in any way that they knew would be illegal. And that's, frankly, you know, why we still have a democracy now, right, in 2023, is because there were people like the Senate Majority Leader in Michigan, like the House Speaker in Michigan in 2020, that stood firm and did the right thing despite this enormous pressure campaign.

That, again, I mean, you -- it's not just that the top two Republicans in the state of Michigan that were subjected to this. You know people forget. You know, Donald Trump actually called members of the Wayne County Board of Canvassers.

TAPPER: Yes.

NESSEL: Can you imagine --

TAPPER: Yes.

NESSEL: -- being, you know, one of those individuals and you're, you know, you're involved in this very ministerial process of a county board canvas to approve the election, and you get a call on your way home from the president --

TAPPER: Right.

NESSEL: -- of the United States of America --

TAPPER: No, it's something --

NESSEL: -- telling you to go back and to switch your vote on, you know, on the certification for your county? I mean, is there anyone in the state of Michigan or any of these seven states that Donald Trump didn't call to try to pressure them into doing something very illegal? That's really -- that's the better, I think, at this point.

TAPPER: Yes. Attorney General Dana Nessel, thank you so much for your time. Really appreciate it. I'm going to throw it back to Anderson.

COOPER: We think we've fixed our technical difficulties with former Attorney General Alberto Gonzales. Let's go back to him. Judge Gonzales, apologize for those problems. Based on allegations laid out in the indictment, would you have brought this case?

ALBERTO GONZALES, FORMER ATTORNEY GENERAL, G. W. BUSH ADMIN.: I, you know, I -- yes, I would have brought this case. I -- let me remind the viewers, though, in this country that President Trump is presumed innocent until proven guilt to beyond a reasonable doubt. And so, you know, presenting the indictment is so much easier than getting a conviction in a complicated case, in a high profile case.

And so, you know, we're a long way from a situation where President Trump has violated the law. He is presumed innocent, and I don't want to get away from that. It is true the story laid out by the special counsel is very thorough, and I think he's done a good job in streamlining the charges so that hopefully a trial can occur.

From my own perspective, I think it is important for the trial to occur before the election. The American people deserve to know before they cast the ballot. Assuming that Donald Trump is the Republican nominee, they need to know whether or not his conduct here, whatever it was, was criminal or not.

[20:45:09]

COOPER: Do you think it will happen before the election?

GONZALES: Well, I think it's certainly possible. You don't have classified information you have to deal with. You've only got one defendant currently. And so I think it's certainly possible. You've got a judge that has a reputation of moving things forward.

I think she appreciates the importance of protecting the rights of the accused in this case, but also understanding that the American -- for the American people, this is an important case, and it's important for them to know whether or not one of the candidates for president assuming again that Donald Trump wins a nomination, whether or not this person committed federal crimes.

And so, yes, I think it is possible. A lot will depend, of course, with respect to what Donald Trump's lawyers were able to do in terms of slowing down the process. But I think there will be every effort by this judge to make sure that that happens. I think that's important for the American people.

COOPER: We've been hearing from the former president's attorneys, First Amendment arguments, advice of counsel arguments, do either of those -- are either of those you think applicable here?

GONZALES: Well, I don't think they're going to carry the day. I think that they resonate with the average voter. No question about it. I mean, it seems to make sense that, hey, people say things all the time in the campaign, oftentimes -- not oftentimes, but sometimes what they say is not true and they're not prosecuted.

But I do think it is true that the First Amendment does not protect all speech, and it does not protect conspiracy to engage in fraud. And then at the end of the day, you know, how is Donald Trump going to respond to that? If he does, I'm assuming he won't take the stand. So it's really puzzling to me how that's going to play out with respect to the defense.

Of course, the burden is on the prosecution. There's no question about that. But I think Jack Smith has done a pretty good job laying out the evidence here. And I think, as Attorney General Barr indicated, I think there is more that Jack Smith has that's going to be presented at trial.

And the question is, how -- what is the defense going to be? Donald Trump, it seems to me, will be the most -- the best witness in his defense. But are you really going to put him on the stand? I wouldn't put him on the stand. So, you know, there's a lot of unanswered questions here, but I guess the short answer to your question is, I think, this is a strong case.

And but it's not going to be a slam dunk by any stretch of the imagination. We've got a good story here. We've got a strong prosecutor, but President Trump's going to have good representation and see what happens.

COOPER: Just to be clear, you were saying President Trump would be the best witness in his own defense, theoretically. But the fact that he is Donald Trump and a terrible witness, he's not going to testify.

GONZALES: I think there's going to be so much concern that he's going to commit perjury, for example, or he'll say something that is not in his best interest. Just based upon the evidence and based upon what I've heard comments from his own attorney general, I mean, that to me, carries the most weight.

I've been asked by others, do you believe that he believed that the election was stolen, that there was fraud? And, you know, I don't know the man. I wasn't his lawyer. But when Bill Barr, his lawyer, the attorney general says that he believes that Donald Trump knew the election had been lost. I give that a great deal of weight.

COOPER: Judge Gonzalez, thanks for being with us. Appreciate it.

GONZALES: You bet. Thank you.

COOPER: Just ahead, we'll be joined by another former member of the House Select Committee that investigated the January 6 attacks. Congresswoman Zoe Lofgren of California has called the former president's behavior, quote, criminal. Says it must be addressed by a jury.

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[20:52:35]

COOPER: The former president's not guilty plea today to charges he planned to overturn the 2020 election comes almost eight months after the January 6 committee referred the former president to the Justice Department on criminal charges.

TAPPER: Now, much of the Justice Department's case follows directly in the footsteps of that panel's 18-month investigation. Let's go back now to Kaitlan Collins who's outside federal court.

COLLINS: Yes. So we've been outside the federal courthouse since earlier today when Trump left. And I'm joined now by one of the members of the January 6 Congressional Committee, Congressman Zoe Lofgren.

Congressman, thank you for being here tonight. As someone who was on the committee, and that is something that clearly laid a roadmap for what we have seen the Justice Department do here, what was it like to watch the former President go in there today and plead not guilty to these charges?

REP. ZOE LOFGREN (D), CALIFORNIA: Well, it's hard to be joyful when a former president is arrested. On the other hand, there is a sense of satisfaction, I think, among all the members, that the hard work we put in and that the evidence we uncovered really provided a roadmap for the Department of Justice to bring justice to this case, to charge the ex-president with the crimes that we said he committed. And I am hoping that we can have a speedy trial and that justice will be for the good of the country.

COLLINS: One of the things, of course, that is the difference here is what Jack Smith was able to get his hands on through the power of his subpoena compared to a congressional committee subpoena. I mean, were you surprised when you heard that the former Vice President, Mike Pence, had taken these contemporaneous notes? Did you have any idea about that when you were conducting your investigation?

LOFGREN: No, I didn't know about that, and I don't think the investigative staff did either. We were -- you know, we interviewed his counsel as chief of staff. He declined our subpoena. So there were things we didn't know.

What I was really struck by was in the indictment where he reports that Trump told him he was too honest. To me, that says a couple things. One, the President knew he was being dishonest and that Pence refused to violate his oath. I am sure that his contemporaneous notes will have a lot of information that will be of value and will augment what the committee was able to find out.

[20:55:03]

COLLINS: One person that you did get to speak to was the former Attorney General, Bill Barr. I also talked to him last night and I asked if he thought that Trump actually did know that he had lost the election. This is what he told me.

(BEGIN VIDEO CLIP)

BARR: Do I personally believe that? Yes, at first I wasn't sure, but I have come to believe that he knew well that he had lost the election.

(END VIDEO CLIP)

COLLINS: How important do you believe statements like that from people who were around Trump in those final days around the election will be to this case that Jack Smith is bringing here?

LOFGREN: Well, I think the attorney general, I agree with him, but his opinion is not evidence in a court of law. However, there's ample evidence to prove that the then-president knew that he'd lost. I'll say also, I mean, he lied to members of Congress and the Senate, urging them to reject the electoral, the votes, saying that there was states that wanted the electors returned.

He knew that was false. You know, he had tried to get the states to reject it and had failed. So it's not just that he knew that he lost the election, he knew that the states were not asking for their electors back. The whole thing was a fraud on the United States.

COLLINS: One thing Bill Barr wouldn't say is whether or not he has spoken to Jack Smith. As someone who investigated what Jack Smith is essentially investigating here, do you think that is someone that you would assume he would want to talk to?

LOFGREN: I would assume so. I mean, there were quite a few situations that Barr was able to observe that would be pertinent to this case. So I imagine that Barr has been a witness and I imagine also, you know, I'm just guessing, but it looks like since Meadow is not apparently a co-conspirator, I assume that Mark Meadows may also be testifying and that would be very damaging to Trump. I mean, Meadows knows everything.

COLLINS: We'll wait to see. Congressman Zoe Lofgren, thank you for your time tonight.

LOFGREN: You bet.

COLLINS: And more of our continuing coverage next, including the latest on the former president's defense strategy and whether the special counsel has more evidence than what he's shown in his indictment.

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