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CNN NewsNight with Abby Phillip

Trump Defense Bruises Cohen In Hit To Prosecution's Case; Trump Defense May Call Ex-Michael Cohen Adviser To Stand; New York Times Posted An Upside-Down Stop The Steal Flag After The January 6th Insurrection; Dr. Sanjay Gupta Previews His Documentary On Alzheimer's Disease. Aired 10-11p ET

Aired May 16, 2024 - 22:00   ET




ABBY PHILLIP, CNN HOST: A game of risk that prosecution may have just lost. Good evening. I'm Abby Phillip in New York.

Tonight, the Trump defense strategy was obvious from the jump. It was to paint Michael Cohen as a lying liar obsessed with revenge. But what was an open question as cross-examination started was whether the strategy would actually work. Of course, we won't know until the jury actually renders its verdict.

But if anything may derail the government's case against Donald Trump, it might be what happened today. Todd Blanche, the lead lawyer for the former president, is on the attack. He's asserting that a phone call that Cohen claimed was about the Stormy Daniels payment wasn't made to Trump at all, but rather to Keith Schiller, who's Trump's bodyguard. And it was about something else entirely.

Now, Cohen has claimed that the call drove directly at the heart of the case, that Donald Trump knew the intimate details about the $130,000 payment that Cohen would make to silence adult film actress Stormy Daniels. The defense instead said that it was about prank calls. And that was based on text messages that Cohen had sent Schiller fixating on the pranks of a 14-year-old just minutes before that phone call happened.

Now, it is an alternative theory that threatens to collapse the prosecution's case like a wobbly Jenga tower. The defense highlighted Cohen's alleged lie after alleged lie to catch him, cast him as the opposite of a reformed truth teller.

And they used Cohen's own words against him. They replayed portions of his podcast. The jury listened to Cohen in his heavily accented New York baritone. He promised to make sure that Trump rots.


MICHAEL COHEN, FORMER TRUMP ATTORNEY: I truly (BLEEP) hope that this man ends up in prison. It won't bring back the year that I lost or the damage done to my family, but revenge is a dish best served cold. And you better believe I want this man to go down and rot inside for what he did to me and my family.


PHILLIP: Joining us now, Nick Akerman, former assistant special Watergate prosecutor, Tim Parlatore, CNN Legal Commentator and former Trump attorney for -- former attorney for Donald Trump, Stacy Schneider is a criminal defense attorney and former Apprentice contestant, Joey Jackson, CNN legal analyst, and Donte Mills, civil and criminal attorney.

We got enough lawyers, I think, at the desk here today, which is great because this is -- we're getting to the point where the lawyers are really necessary here.

But, Joey and Donte, can you please walk us through some of the key parts of this cross-examination in all of your theatrical glory?

JOEY JACKSON, CNN LEGAL ANALYST: No doubt. This was a big day today, I would say, for the defense, major revelation. So, let's get right to it. I will be the defense attorney.

DONTE MILLS, CIVIL AND CRIMINAL ATTORNEY: I'm going to be Cohen, but I'm asking my family not to hold it against me.

JACKSON: And so Blanche, and here, here it goes. When you testified on Tuesday that that you had a specific recollection that a one minute and 36-minute phone call on October 24th was not with Keith Schiller, he, of course, is the president's body man, right, bodyguard, that you called Keith Schiller and he posed and passed the phone to President Trump, you finalized the deal with Stormy Daniels and you said, we're going to move forward. And he said, yes, because you kept them informed all the time. That was your testimony, right?

MILLS: That's correct.

JACKSON: That was a lie. You were actually talking to Mr. Schiller about the fact that you were getting harassing phone calls from a 14- year-old, correct?

MILLS: Part of it was the 14-year-old, but I know that Keith was with Mr. Trump at the time. And there was more than potentially just this. That's what I recall based upon the documents that I reviewed.

JACKSON: Five minutes ago, I asked you if you remember harassing phone calls, and you said, no, and then I refreshed your recollection. It's totally fair if you don't remember, but now your testimony is that you were testifying truthfully on Tuesday, to a one minute and 36-second phone call, and you had enough time in that one minute and 36 seconds to update Mr. Schiller about all the problems you are having with these harassing phone calls and also update President Trump on the status of the Stormy Daniels situation because you had to keep him informed.


Because every time you made any decision, you ran it by the boss. That's your testimony?

MILLS: I always ran everything by the boss immediately. And in this case, it could have just been saying everything is being taken care of. It's going to get resolved.

JACKSON: That's not what you testified to on Tuesday. You said you had a recollection of a phone call on October 24th at 8:02 P.M. where you called Mr. Schiller and gave the phone to President Trump and you told President Trump about the updates, that you were moving forward with the funding and he said, okay, go. That was a lie. You did not talk to President Trump on that night. You talked to Keith Schiller about what we just went through. You can't admit that?

MILLS: No, sir. I can't. I am not certain that is accurate.

JACKSON: You were certain it was accurate on Tuesday when you were under oath and testifying. You were certain it was accurate. You had a phone call to President Trump, but now you were saying you are not certain it was accurate.

MILLS: Based upon the records that I was able to review in light of everything that was going on, I believe I also spoke to Mr. President Trump and told him everything regarding the Stormy Daniels matter was being worked on, and it's going to be resolved.

JACKSON: We're not asking for your belief. The jury doesn't want to hear what you think happened.

So, Abby, this is a big deal, and I'll tell you why it's a big deal. So much of the prosecution's case has been predicated upon the notion of corroboration for everything that, of course, was testified to, right, by Michael Cohen.

There's one critical component that has not been corroborated, and that is the details with respect to what he told Trump and whether Trump was aware of the nature, the purpose, the structure of this arrangement. Guess who was on this phone call when he was calling? It was either only Schiller or it was Trump. Trump is a defendant who doesn't have to testify so he can keep quiet and chill. I'm sure if you brought him in there, the body man, he'll say he was talking to me about the harassing for 14-year-old.

And so this element of corroboration goes to a core issue in the case. The fact that the prosecutor didn't initially in direct examination, get out the fact that he could have been talking about a 14-year-old harasser in addition to updating the president is a big deal. I think it was a game changer.

MILLS: And it was so easy to do. All they had to do is say, on that call, did you talk about anything else? Yes, we also talked about the 14-year-old, and none of this would have been a problem. But when you're relying on Cohen to seal the deal and fill in those gaps that you have in your case, and now you have a clear example of him probably lying or maybe lying about one of those gaps, I think that leaves some doubt there. PHILLIP: Either a major screw up by the prosecution, or if the jury views it as an intentional omission of important information, that's really problematic.

STACY SCHNEIDER, CNN LEGAL ANALYST: It is. And to me it seems like a screw up by the prosecution. Like they should have caught --

NICK AKERMAN, FORMER ASSISTANT SPECIAL WATERGATE PROSECUTOR: This is ridiculous. This is such a minor little blip on the scheme of things.

First of all, you can't ignore the fact that there are 250-some odd documents that basically back up what Cohen has said, what Pecker has said, what all of these various witnesses have said. One little phone call like this, this is not a gotcha moment. I mean, I had this happen before in a trial, where I had a guy who said he was at a certain place at a certain time for a meeting. I was able to get restaurant records that show, absolutely not. He was at a different place at a different time. This is not that kind of situation.

SCHNEIDER: No, no, no, no, it's huge because -- well, wait, wait, wait, let me tell you why. It's a two-part crime. Falsifying business records, the felony in New York State requires that there's intent to falsify the records, and there has to be either the commission or the cover up of another crime.

So, I will concede with you one point only, in that the prosecution did really well in establishing the other crime, which was perhaps election interference, perhaps even a tax fraud. That will come later. But Michael Cohen's act was established by all those other witnesses, David Pecker, whom you referred to.

But now we come to the crux of the New York State Penal Code, which is, did Donald Trump have the intent to falsify the business records? With only Michael Cohen's testimony saying what Donald Trump knew or directed or ordered, that's the only thing the people have, the people meaning the people of the state of New York, what we call the prosecution. It is true.

AKERMAN: No, it isn't true. They've got those records. You've got the notes of Weisselberg, where he's writing down the $420,000.

PHILLIP: But the notes of Weisselberg are the notes of Weisselberg and Michael Cohen is the link between Allen Weisselberg and Donald Trump. And it is his word that is the bridge between those two men.

AKERMAN: No, that's not right. McConney also identified those records, and he identified them as being in Weisselberg's handwriting.


PHILLIP: But he doesn't prove that Donald Trump knew about them.

JACKSON: Listen, Weisselberg is not on trial. Mr. Trump is on trial.

PHILLIP: And also if Weisselberg were on trial, it would be a closed case. SCHNEIDER: Weisselberg is not going to be called. Sorry to interrupt you, Abby, but there was after Tuesday's testimony, I believe, there was a conference with Judge Merchan and the attorneys about where is Weisselberg. It's almost like the Where is Waldo situation. And Weisselberg is now on Rikers Island serving a sentence for perjury. So, the prosecution has no incentive to bring him into this case. They already have an issue with Michael Cohen being an alleged perjurer or a perjurer, either alleged or unalleged. So, he's not coming in.

So, the only tie to Donald Trump's knowledge at this point in the case, which is why this is such a big turning point, is Michael Cohn's testimony. So, if the jury doesn't buy the connection, and if they do rely on this phone call and it's not cleaned up properly by the prosecution, they got problems.

PHILLIP: So, I want to read a little bit of the, just for context so people understand exactly what Michael Cohen said earlier this week. This was on Monday during direct with the prosecution. This is Susan Hoffinger. She says, why did you need to speak with Mr. Trump at that point in the evening on October 24th? Cohen says, to discuss the Stormy Daniels matter and the resolution of it. Hoffinger says, and did you have an understanding about whether during that conversation you resolved that you were moving forward to fund the deal. Cohen says, yes.

So, he makes it a pretty hingy conversation where it's like he had this conversation where he knew that he could then move forward. If that conversation didn't happen, that becomes --

AKERMAN: But it doesn't make any difference. He just said he spoke to Trump and he spoke to Keith, the bodyguard.

JACKSON: Here's why it makes a difference. If that was the issue, what you do, I think, in direct examination as the prosecutor, you say, sir, there came a time you made a phone call, right? He gets into the specific phone call, and in that phone call, tell us about it. Well, there was a 14-year-old harassing me, and I addressed that with the security personnel, but Trump was right there, and at that time I had a conversation. Nothing said about it. It's not said then, it's not said in the grand jury, but the defense has something to say. So now, all of a sudden, that wasn't the only thing I talked to him about, right? It was about the 14-year-old, and it was this.

AKERMAN: So, what?

JACKSON: Well, look, the bottom line is, I think you're doing exceptional lawyering, which is what they are going to have to do, right? That means the prosecution.

AKERMAN: I don't think so.

PHILLIP: I'm going to let Tim in.

TIM PARLATORE, FORMER TRUMP ATTORNEY: See, that's the thing, is that there's a lot of corroboration for a lot of these, you know, other acts, but those are not the crimes. Those are not the elements of the crime. Look, what you're doing is exactly what prosecutors we would expect them to do. They would say look at all the corroboration of all this other stuff. But since that's not the elements of the crime, the actual elements that they need to prove is his personal involvement, his personal knowledge.

They've corroborated Michael Cohen's involvement. They've corroborated Allen Weisselberg's involvement. But to actually connect it to Trump, they need the contents of these phone calls, which we now know Michael Cohen lied about.

AKERMAN: Well, you can't say he lied about it. At best, he was mistaken about another issue that came up at the time. Clearly, at that time, if you look at all the circumstances, what was going on in terms of Stormy Daniels, he had to get his permission to pull the trigger on that deal.

MILLS: You can't hinge everything on that conversation. They said, well, we know we have to prove that Trump knew. Well, Cohen, you're on the stand. How do we know? How do we know Trump knew? Well, on this particular call, I told him, this is the call where I got permission. Now, that call was about something else, at least. So, he hinged everything on that call, and now that call is in doubt.

AKERMAN: Everything is not hinged on that call. It's also other conversations, other meetings, where it was basically decided at that point how this money was going to be paid out.

SCHNEIDER: Right. But the only problem with the --

AKERMAN: Trump signed all these checks.

PHILLIP: Look, just one second, just one second, because I do think that there is a point to be made here that, again, it doesn't really matter whether or not Donald Trump had a conversation with Michael Cohen about whether Michael Cohen was actually going to pay Stormy Daniels. Because to your point, that is not what he's charged with.

However, and this is what I think you've got to address, Michael Cohen's credibility is on the table here as it relates to another big part of this, which is at the end, when they are deciding what to pay him and how to structure it. And he is the person who says that Donald Trump knew about that. He's the only person who is saying that.

AKERMAN: Well, it's also Donald Trump who signs this thing. It's also Donald Trump on tape, who knows about the whole scheme when he's talking about Karen McDougal. You can't just look at this in isolation.

MILLS: None of that's the evidence.

PARLATORE: Because the problem with that is, yes, he signed the check, but did he put the annotation into the book? No.

AKERMAN: He doesn't have to. Under the law, you don't have to.

PARLATORE: No. But it's a false business records case. And so the false business record is not the signature on the check. It's the annotation of what the check is for. Because if --

AKERMAN: It's the invoice. It's the invoice that goes along with the check, which is stapled to the check.


And that's what he saw when he signed each and every one of those checks.

SCHNEIDER: But don't you think Trump is going to come forward? This is Trump's defense without him taking the stand or saying it? I was in D.C. Michael Cohen didn't get paid until 2017 when those checks started going out. I was in D.C. running the country. I was not dealing with the Trump Organization in New York. Whatever they did over there, Allen Weisselberg did it. And he knows Allen Weisselberg isn't coming into court because he's in jail right now. So, he's got the perfect out and it just got confirmed.

I'm not saying the out will win with the jury, because there was -- I agree with you, there was corroboration on the catch and kill scheme and all those people, but the crux of the charge is did Trump have the intent to falsify the business records of the Trump Organization.

And, wait, I have one more point that people might think is obvious. You know, if you think about this whole thing, why is Trump in trouble here? He could have done a side deal with Michael Cohen, who is his private attorney, who wasn't really even working for the Trump Organization anymore at that point in time. Trump was transitioning, you know, he was on the campaign. He could have just said, Michael, let's take care of this between the two of us. And, you know, I'll give you the money, whatever. Take care of it.

But what happened here is that money allegedly was run through the business records, almost like a tax deduction, like taking your family out to dinner for a business meal and then running it through your business.

AKERMAN: It was more than a tax deduction. It was like it was grossed up. I mean, they could have just reimbursed Cohen and they didn't. I mean, Trump had to know that this thing was all screwed up and it was done in a way to hide all of this.

PHILLIP: Here's a question about defense what they do at this point. Maybe this was a slam dunk for the defense, but they have a choice now. Do they continue? Do they put on their part of this? Or do they just rest and let the jury sit with this and go into deliberations? I mean, they don't have the burden of proof here, but do they want to leave it to chance, or do they need to call some extra witnesses to further break down Michael Cohen's credibility?

SCHNEIDER: I have an opinion on it.

JACKSON: Well, listen, I say I'm always less is more, and, you know, there's things that should be left unsaid and left alone. And the other thing that concerns me, Abby, very much, is that remember, right, what happened here is that the Federal Election Commission was told, based upon Michael Cohen's information, that Donald Trump was not involved, that the Trump Organization was not involved, that he paid it all by himself. And so which one is it?

In 2018, through your lawyer, you're giving the indication, right, when a special interest group comes along and say, wait, this is a finance problem, it's a finance problem. He goes on record, that is Mr. Cohen saying, Trump had nothing at all to do with it. I did it all myself. He has no knowledge or understanding. But now it's all on Trump. Those things concern me.

MILLS: He's an attorney. So, they also show that now he hates Trump. He said he wants to put Trump in jail. He knows what he would have to say to make that happen. He knows what gaps had to be filled in. He has to prove that Trump had knowledge. So, if he knows he has to do that, he can say, oh, no, I told Trump on this phone call, because he knows he has to do that. Now, they show that that call may not have happened.

So, I think it's, it'll be fairly easy to convince the jury that this attorney is now lying to fill in the gaps so Trump can get in trouble.

SCHNEIDER: That will be the defense's case. But can I just point to one point that you were asking about, what should the defense do? And I agree with Joey, less is always more. But I think, based on some signaling from Donald Trump during his alleged gag order violations when he kept talking about Michael Cohen and why am I indicted, all I did -- all they did was take an invoice from a lawyer, Michael Cohen, and they put it on the books and now I'm in court being indicted. So, they really need to distance him from this whole thing.

So, all they could do is bring in somebody else from the Trump Organization because the D.A., the prosecutor already brought in two people from the Trump Organization to talk about the controller and talk about how the books work. But if they could just bring someone in to say or even imply Trump didn't tell us how to put this in the books. And then if you keep working with Michael Cohen and not connecting that through Trump, they have a good chance of beating the case through that situation. That's my defense theory.

PARLATORE: So, one way of doing that also is Weisselberg. He's not being called. So, they're going to get a missing witness charge for him.

PHILLIP: Well, they won't.

PARLATORE: That's the issue.

PHILLIP: They won't because --

JACKSON: An unavailable witness charge.

PHILLIP: Yes. And he's -- you would have to prove --

PARLATORE: He's available.

PHILLIP: You would have to prove he would be a favorable witness. AKERMAN: The judge last week said he might bring him in and actually force him to take the Fifth if that's what he's going to do.

SCHNEIDER: But the judge was kind of running that by the lawyers and both sides, I read that whole colloquy between the judge and lawyers on both sides, they're like, he's not good for either one of them.

PHILLIP: He's a hot potato, nobody wants him.

SCHNEIDER: He's got problems for both sides. And they kept saying, even Emil Bove kept saying, Trump's counsel, Judge, this is -- Allen Weisselberg is a complicated witness, a complicated witness.


PHILLIP: Yes. And he is --

SCHNEIDER: I don't think it's going to --

PHILLIP: He is in prison. He is in prison for perjury. Yes. So, there's that.

Everyone, stick around. Tonight, there's a word that the Trump defense may call a surprise witness, and his name is Bob Costello. How his testimony could end up delivering a bizarre twist to this case.

Plus, why President Biden is asserting executive privilege to keep the public from hearing tapes about himself.

And It's got a lot of you talking tonight. Did a Supreme Court justice fly a Stop the Steal flag at his home after January 6th? We have the details ahead.



PHILLIP: Credible, or a crock of you know what? You can boil the Trump case down to that binary choice and which way the jury will ultimately feel about Michael Cohen. Entering today, Donald Trump's defense seemed poised to call one witness or no witnesses at all, the former president of the United States.

Now, the defense is considering calling Bob Costello. According to a source familiar with Trump's legal team's strategy, Costello can offer a clear cut contradiction to Cohn's narrative. And you don't have to look far at all to see a preview of what that former attorney might say about his former client.


ROBERT COSTELLO, ATTORNEY: He kept on bringing up the subject that he felt he was betrayed by not being brought down to Washington D.C. This guy thought, he said to me, that he should have been attorney general of the United States or at least the chief assistant to the president. Ludicrous, but that's what he thought. And he was very angry about that. He wanted to do something to put himself back into the inner circle of Donald Trump. That's why he took care of this on his own.


PHILLIP: Now, that was Costello testifying before the House Judiciary Subcommittee.

My panel is back with me here. So, Tim, first of all, very bizarre to see a former attorney go into Congress to testify against his client, but then again, that's what Michael Cohen did with Donald Trump, so there's that. But what do you really think Bob Costello has to offer here or is it not worth opening this particular can of worms?

PARLATORE: I think he has something pretty significant. During the direct testimony earlier this week, Michael Cohen talked about how Bob Costello and Rudy Giuliani were dangling a pardon in front of him to keep him loyal to the president. That's the same story that he told to the Southern District of New York U.S. Attorney's Office. They opened a criminal investigation into Bob Costello and Rudy Giuliani for witness tampering for that.

They called Bob Costello in, and he brought in all the emails, all the text messages. He sat with them and showed them how not only did that not happen, but Michael Cohn was begging repeatedly for a pardon to have, you know, Bob Costello asked Rudy Giuliani, and when Rudy Giuliani went and came back and said, the president says he doesn't want to talk to anybody about pardons, and he doesn't want it brought up again, that's when all of a sudden Michael Cohen goes in to meet with the U.S. attorney about trying to cooperate.

PHILLIP: So, just to back up what you're saying, here's what Cohen said that he interpreted Bob Costello's communications to him to mean. This is not exactly what he said, but this is what Cohen says he thought it meant.

And this is part of the pressure campaign, that everyone is lying to you, that you are still regarded, the president still supports you. Do not speak. Do not listen to what any of the journalists or anybody are saying and stay in the fold. Don't flip. Don't speak. Don't cooperate. That's how he characterized it to the jury in court earlier this week.

PARLATORE: And how he characterized it to the U.S. Attorney's Office, and then based on the information that Bob Costello gave them, that's why the U.S. attorney's office dropped him as a cooperating witness.

PHILLIP: So, would this be a big risk for the defense to call Bob Costello? Because, I mean, I hear what you're saying, but the communications, some of them, are not great for Bob Costello at the end of the day.

AKERMAN: He's got real problems here. But I think what really happened here was that Bob Costello was brought in by Rudy Giuliani. They're very, very close. Bob was basically one of the bundlers for his mayoral campaign when Rudy ran for mayor the first time. They were in the U.S. attorney's office together.

And I think what Michael Cohen was doing at the time, that's when he was in his total lying mode, because he was trying to ingratiate himself for the Trump people and stay within the fold. He was trying to get them to pay for his attorney's fees and he was trying to make it appear as though he was still a member of the Trump team. And so what Bob Costello knows is that. I mean, that's what Bob Costello was told.

And so what he's saying is basically what was meant for Trump's ears. And if you really kind of break down what these so called lies are that were brought out during the cross-examination, a lot of them really have to do with just towing the line for Donald Trump and lying for Trump.

SCHNEIDER: Can I ask a quick question about Bob Costello, because I've heard him be described as Michael Cohen's lawyer? I think Michael Cohen said during testimony he was a legal adviser.

PHILLIP: He never had a retainer, was never actually paid for his services.

AKERMAN: He's not his lawyer.

SCHNEIDER: But isn't that a very dangerous line for a lawyer to walk, because he's disclosing attorney -- what would be conceived as attorney-client relationship.

PARLATORE: He's not. Because what happened is Michael Cohen went to hire him. He was not brought on by Rudy Giuliani. That's, you know, been a false rumor. He actually -- Michael Cohen has a long time relationship with Jeff Citron, who is Bob's partner. He went to Citron who said, well, I'm not really a criminal lawyer.


May I bring in Bob. They had several meetings, they were going through the beauty pageant of, you know, are we going to hire you, am I going to hire somebody else? He ultimately decided not to hire them for the case.

But when he accused them to the U.S. Attorney's Office, the U.S. Attorney's Office had him sign an unconditional privilege waiver. And it was only because of that unconditional privilege waiver and the accusation that he made against Bob that the U.S. Attorney's Office found was totally unfounded, that's why he's able to talk about this stuff. So I don't see any parallel whatsoever to Bob.

PHILLIP: We only have 30 seconds, but Tim, I know that you've been in touch with him.

PARLATORE: Yeah. I spoke to him yesterday.

PHILLIP: Okay, so does he want to testify? Has he been asked to? Is there any indication that he's preparing to be in that witness booth?

PARLATORE: I know that he would like to testify as to whether he's going to. You know, I would leave that to the Trump team.

JACKSON: Does it move the needle, Tim? Does it move the needle? He say, he say.

MILLS: And why is he so motivated to be a part of it and testify? Yes, why is he so patriotic about that? As our profession, we're all lawyers up here. We have to take that serious. We can't go up there and say, oh, my client waived privilege, so here's every conversation we had. Why would we be motivated to do that? I just don't understand.

PARLATORE: There's a couple of reasons. One is because he accused Bob of a crime. Two is that when he saw all the lies that Cohen was saying, he actually went to both the Trump team and Alvin Bragg to provide them with this information. Alvin Bragg refused to meet with him. He did go before the grand jury. He gave them all the emails.

SCHNEIDER: Trump's people called him.

JACKSON: This is so off point. It's so collateral. It's so off point. It's like, what are we doing here?

PHILLIP: This is, if nothing, a trial that is all about some shady lawyering. A lot thereof. Everyone, thank you very much.

After years of defending Donald Trump, asserting executive privilege, Republicans are suddenly very outraged when Joe Biden does it. We'll show you the tape.

Plus, a wild report tonight. Did the home of a Supreme Court justice, Samuel Alito, fly a stop the steal flag after January 6th? The reporter who broke that huge story joins me next.



PHILLIP: A calling card for insurrectionists flying in plain view outside of the house of an associate justice of the Supreme Court of the United States. Tonight, the "New York Times" published a report capturing, through the interviews and photos, an upside down American flag hoisted outside of Samuel Alito's home in Alexandria, Virginia.

The pictures are from January 17th, 2021, 11 days after rioters stormed the U.S. Capitol to stop Congress from certifying the 2020 election.

Now, Alito publishing a full stop denial in response to the report saying, quote, "I had no involvement whatsoever in the flying of the flag". It was briefly placed by Mrs. Alito in response to a neighbor's use of objectionable and personally insulting language on yard signs.

Now, we haven't yet heard from the Supreme Court about all of this. But what is missing from Alito's response? A denial that it happened at all, much less remorse or regret that it did. Also missing, any disavowal of the symbol claimed by those who sought to overthrow the government.

Joining us now, Jodi Kantor. She is the New York Times correspondent who broke this massive story tonight. Jodi, how on earth? I have a lot of questions for you. I'm curious about how this happened, but I'm also curious about how you found out about it.

JODI KANTOR, CORRESPONDENT, "NEW YORK TIMES": Well, first of all, thank you for having me.

Let's start with the reaction of the people who saw the flag.

Neighbors were also filtered back to the Supreme Court. And all they're seeing is this upside down flag, which at the time was one of the symbols of the Stop the Steal campaign.

We're talking about the period just after January 6th, but also three days before President Biden's inauguration. So people are just kind of stupefied by it. First of all, it's a very controversial gesture to turn the flag upside down.

But also a very basic thing about federal judges that everybody knows is that they are supposed to appear totally fair and impartial. They aren't supposed to participate in politics or sort of do anything to even suggest the appearance that they're not going to handle something fairly.

So the first thing people felt was really just very great surprise. And this wasn't up there for just 10 minutes. What neighbors say is that it was there for a few days.

PHILLIP: Yeah. I mean, okay. So I'm going to go back to the statement here from Mr. Alito or Justice Alito. He says it was briefly placed by Mrs. Alito in response to a neighbor's use of objectionable and personally insulting language. Briefly is doing a lot of work there. I wouldn't characterize a couple of days as that, especially in that time period that you described.

But the other thing is, I mean, the court's rule book about the conduct of employees is pretty specific. You cannot publicly oppose or support partisan political organizations or candidates. Bumper stickers are off limits, stating political positions on social media. They may not engage in nonpartisan political activity if the activity could reflect adversely on the dignity or impartiality on the court.

That's clear for employees. The wife of a Supreme Court justice, if you were to take the statement at face value, maybe another story, but if it's flying outside of the home, how is anybody supposed to know?


KANTOR: That's why judicial ethics experts are concerned. They say that, they say that, okay, let's take this story at face value. Let's say it was Mrs. Alito. These rules are still about the appearance of impropriety. And that's because it's about trust in the system.

For democracy to work, we all need to respect these institutions. We all need to feel that they're fair. And any action that creates doubt in that is a negative thing.

And that's especially true given what's happening now. Everybody's focusing, I understand why, on the proximity to January 20th, the inauguration, January 6th. But I want to point out that at this moment, we are waiting for the Supreme Court to rule on two blockbuster January 6th cases that are really going to shape accountability for those actors, including former President Trump.

They're going to shape the legacy of January 6th, and they may even help determine the course of the next election.

So one of the questions is, when these decisions come out, will Americans react to them with a sense of trust and respect? And even if I disagree with this, I believe it was decided fairly.

PHILLIP: I mean, there's no question there has been an erosion in the trust in the court. I mean, again, taking the statement at face value, let's say it was Mrs. Alito. You would have Mrs. Alito and Mrs. Thomas both, perhaps, espousing beliefs about, strong beliefs about something that is before the court, issues that are before the court.

And neither of those individuals have recused. The recusal rules seem, basically, I mean, it's more or less up to the justices' discretion. Is that about right?

KANTOR: So it's interesting. It's a binding federal statute, so it does apply to Supreme Court justices.

The court has said that it's for individual justices to determine. I think the question of whether this fact pattern is a cause for recusal is something for the experts to debate. We just broke this news tonight, and I'm curious to see how the legal world reacts.

But there are a number of issues. There are kind of the recusal issues about whether he should participate in this case. And there's the question of the code of conduct for judges, and whether this behavior meets that bar.

And if not, what anybody can do about it, because the Supreme Court, by definition, is the last word, and nobody else supervises the justices.

PHILLIP: Yeah, that's why the appearance of impropriety is so problematic there. What's amazing, Jodi, is also, I mean, this being scuttlebutt for basically four years in that neighborhood and among the court, and then finally coming out when it did.

Thank you for joining us with all of this reporting.

And up next for us, a shouting match interrupting between Alexandria Ocasio-Cortez and Marjorie Taylor Greene on Capitol Hill. We'll show you what happened.



PHILLIP: They are the audiotapes at the center of the decision not to charge President Biden in the investigation of the classified documents that were found at his home. Well, tonight the president is asserting executive privilege to keep those recordings secret.

Now, you'll remember that special counsel Robert Hur described Biden as well-meaning, elderly man with poor memory, and decided that a jury would be sympathetic, ultimately.

Now, the White House took issue with that description, and the transcripts of the interview were made public. But the tapes have now become the center of a fight with House Republicans.

In fact, they want to hold the attorney general in contempt for refusing to release them.

The Justice Department cites privacy and a clear political motivation on the part of Republicans.

Now, let's keep in mind, CNN has also sued for access to these tapes, since journalists do want access to access as much information as possible. We want to hear the tapes, and we want you, the taxpayer and the citizen, to hear them, too.

But what's curious politically is that when it comes to the issue of executive privilege, Republicans are suddenly critics. This is after Donald Trump and his allies spent years making this argument.


UNKNOWN: Executive privilege serves the public interest. It's for us. It's for we, the people.

SEN. MITCH MCCONNELL (R-KY): The concept of executive privilege is another two-century-old constitutional tradition.

DONALD TRUMP, FORMER U.S. PRESIDENT: There are things that you can't do from the standpoint of executive privilege. You have to maintain that.

UNKNOWN: Now they're destroying executive privilege. Now they're attacking that. And this might be the worst. Destroying a president that has been around since George Washington.

LAURA INGRAHAM, FOX NEWS HOST: So you're going to invoke executive privilege?

TRUMP: Well, I think you have to for the sake of the office.

SARAH HUCKABEE SANDERS, THEN-WHITE HOUSE PRESS SECRETARY: The president's power to assert executive privilege is very well established.

TRUMP: To me, for the future, we have to protect presidential privilege.

UNKNOWN: You have presidential executive privilege. You have attorney- client privilege. Apparently that doesn't mean much anymore at the DOJ. The privilege that's not his to waive, it belongs to the president. The privilege that the court said is critical to executive decision-making.

TRUMP: We have to protect presidential privilege for me, but for future presidents.


PHILLIP: Future presidents like his successor and the current occupant of the White House and his opponent in the 2024 race.


Also on Capitol Hill, who says that there's no fighting in the hearing room? Well, tonight, House Oversight Committee markup suddenly turned into a deeply personal name-calling match between Democrat Alexandria Ocasio-Cortez and Republican Marjorie Taylor Greene. Listen.


REP. MARJORIE TAYLOR-GREENE (R-GA): Do you know what we're here for?

REP. ALEXANDRIA OCASIO-CORTEZ (D-NY): You know we're here.

TAYLOR-GREENE: I don't think you know what you're here for.

OCASIO-CORTEZ: Well, you're the one talking about.

TAYLOR-GREENE: I think your fake eyelashes are messing up.

REP. STEPHEN LYNCH (D-MA): Order, Mr. Chairman. (Inaudible) please.


UNKNOWN: We have a point of order.

COMER: Mr. Lynch, state your point.

LYNCH: Mr. Chairman, I would just like to ask the parliamentarian if your conduct here in raising money in connection with this hearing is referable to the ethics committee within this hearing. Is the motion in order to refer your conduct and your abuse of --

UNKNOWN: It's not a point of order.

OCASIO-CORTEZ: Mr., I do have a point of order, and I would like to move to take down Ms. Greene's words. That is absolutely unacceptable. How dare you attack the physical appearance of another person?

TAYLOR-GREENE: Are your feelings hurt?

OCASIO-CORTEZ: Move her words down. Oh, girl. Baby girl.

TAYLOR-GREENE: Oh, really?

OCASIO CORTEZ: Don't even play with me.

TAYLOR-GREENE: Baby girl, I don't think --

OCASIO-CORTEZ: We are going to move and we're going to take your words down.

UNKNOWN: I second that motion.



Well, next, if you could take a test to determine your risk of getting Alzheimer's, would you? Dr. Sanjay Gupta decided to hear what the answers were to that test, hear what he discovered about himself next.



PHILLIP: Right now, nearly 7 million Americans are living with Alzheimer's dementia. For decades, researchers have tried and failed to come up with a way to effectively treat Alzheimer's. But now there are some new tools to battle this disease.

And CNN's chief medical correspondent, Dr. Sanjay Gupta, spent five years investigating these scientific breakthroughs in a new documentary called "The Last Alzheimer's Patient". It premieres on Sunday, May 19th, on "The Whole Story". Here's a preview.


DR. SANJAY GUPTA, CNN CHIEF MEDICAL CORRESPONDENT (voice-over): In the five years of making this documentary-

GUPTA: The 20-year-old newlyweds.

That's right.

GUPTA (voice-over): I've met with patients all around the country who were diagnosed or at high risk for this devastating disease.

GUPTA: Do you remember this time in your life, Mike?

GUPTA (voice-over): It made me really start to think about my own brain. I have a family history of Alzheimer's as well. Sometimes I feel a little rusty. Sometimes I worry that I make mistakes that maybe my friends and family are too polite to tell me about.

UNKNOWN: I'm going to look at your body composition.

GUPTA (voice-over): So that's why I decided to do something quite personal.

UNKNOWN: Your muscle mass, your body fat.

GUPTA (voice-over): Quite revealing.

UNKNOWN: That wasn't quite right.

GUPTA (voice-over): I went through a battery of tests to assess my own risk.

UNKNOWN: Just like we get a cholesterol test every year and check your blood pressure. Got to do the same thing for the brain.

GUPTA (voice-over): And what did I find?

UNKNOWN: I'll just say it.


PHILLIP: Joining me now is Dr. Sanjay Gupta. He's also a neurosurgeon. Sanjay, first of all, I'm not quite buying that you're a little rusty. You seem pretty all there to me.

GUPTA: I don't know. Every now and then.

But, I mean, it's so interesting. I didn't even know that younger people could do tests like this. Do you think other people should do what you did and test their Alzheimer's risk?

GUPTA: I don't think that it's necessarily for the masses as of yet, Abby. And I think just even a few years ago, the common sort of question was, look, if I get these tests, what can I do about it? What difference is it going to make?

I think that's the part of the equation that's starting to change. It's become clear that there are things that can be done in terms of reducing the likelihood you'll progress, maybe even changing your overall outcome in the long run. So I think we're going to see these tests become more common, kind of like Richard Isaacson was saying. They're like a cholesterol test or testing your PSA, for example.

PHILLIP: Yeah, I mean, the question of what can be done is so crucial to this. I mean, you spend so much time in this documentary with people whose Alzheimer's symptoms were actually reversed. How is that even possible? What does the science show about that?

GUPTA: Look, this surprised me as well, to be very clear. I want to be very careful because I think we're still sort of at the nascent stages of understanding what we can actually do in terms of modifying the brain.

I sort of think we are where we were with heart disease 50, 60 years ago. 50, 60 years ago, you say someone has heart disease, that's it. Abby, you have it. You're going to have it. It may lead to a heart attack. The idea that you could reverse it through lifestyle changes wasn't something that was widely accepted.

That's the stage that we're at now with the brain.

So I think the answer is yes. And I saw that. One of the advantages of doing a documentary over five years is you can follow people over that time. And I saw people who were diagnosed with Alzheimer's, who were on the steady decline, and then five years later were living a much more normal life.

So I want to be careful. I don't want to have this unbridled sort of optimism about it. But look, it was pretty exciting to see what happened to these folks.


PHILLIP: That is exciting. It definitely means folks need to tune in when this documentary airs. Sanjay, thank you so much.

GUPTA: You got it, Abby. Thank you.

And don't miss it. Sanjay's full documentary, "The Last Alzheimer's Patient", premieres this Sunday, May 19th, at 8 p.m. Eastern on "The Whole Story", only on CNN and on Max.

And thank you for watching "Newsnight". "Laura Coates Live" starts right now.