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Donald Trump Set For Arraignment in D.C.; Strength of Latest Case Against Trump?. Aired 11-11:30a ET

Aired August 03, 2023 - 11:00   ET

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

[11:00:47]

KATE BOLDUAN, CNN HOST: A federal courthouse in D.C. becomes the center of the legal and political universes today, Donald Trump to be under arrest again.

What is about to unfold in that courthouse, we have it for you.

JOHN BERMAN, CNN HOST: So, the so-called fake elector scheme that is so crucial to the special counsel's case, we will explain why this might create some of the greatest legal peril for Donald Trump.

And a brand-new CNN poll released this morning shows nearly 70 percent of Republican voters still believe that Joe Biden did not legitimately win the 2020 election.

Sara is off today. I'm John Berman with Kate Bolduan. This is CNN NEWS CENTRAL.

BOLDUAN: Last hour, our cameras spotted special counsel Jack Smith's motorcade entering a federal courthouse in D.C.

Former President Donald Trump will be arriving at that same courthouse in just hours to face a judge and be arraigned for charges related to his attempts to overturn the results of the 2020 election, efforts that prosecutors say led to the January 6 insurrection.

And this just in. CNN caught up with President Joe Biden on a bike ride this morning. Listen to this.

(BEGIN VIDEO CLIP)

QUESTION: Mr. President, will you be following the arraignment today, sir?

JOE BIDEN, PRESIDENT OF THE UNITED STATES: No.

(END VIDEO CLIP)

BOLDUAN: That from President Biden today.

We have team coverage for you this morning, CNN's Katelyn Polantz, CNN's Shimon Prokupecz outside various parts of this federal courthouse in D.C. on what to expect today in terms of security preps in place, and also what's to prepare for inside that courtroom. Katelyn, first to you. What's the very latest you're hearing about

what's going to happen today?

KATELYN POLANTZ, CNN SENIOR CRIME AND JUSTICE REPORTER: Well, Donald Trump will be here today. He's going to be brought in very close to the time of that arraignment.

It is expected to be quite a short proceeding, where there won't be no -- there will be no photos and videos taken of Donald Trump. But he will be able to be observed by a lot of people in the courthouse and in the courtroom itself, where he faces his charges related to January 6 and the 2020 election for the very first time.

But the courthouse right now is in a state of hunkering down. There are judges that are here going about their business as usual. There are other criminal defendants who are having appearances today before judges, including a January 6 rioter, at his sentencing, where a judge remarked that nothing today will have any bearing on what that sentencing will be.

And so it is a mood where this court still has a lot to handle, with so many January 6 rioters, many still Donald Trump supporters, coming through this courthouse on a daily basis, and also takes a pause to make sure that there is security in place, a lot of protocol around the former president coming into this federal courthouse for the very first time to make his appearance.

We haven't seen any other really boldfaced names around here, other than just a few people from the special counsel's office trickling into the courthouse so far, but there have been a few people related to Donald Trump who have been out there already this morning talking about what is happening inside this courthouse, including ongoing investigations.

One of those people, John Eastman's attorney, Harvey Silverglate, he was on CNN earlier today speaking with Poppy Harlow.

(BEGIN VIDEO CLIP)

HARVEY SILVERGLATE, ATTORNEY FOR JOHN EASTMAN: We are preparing a memorandum that we are going to send to the attorney general the United States sometime next week laying out the facts and the law and arguing that our client acted as an attorney advising a client, that the advice was lawful, and that Eastman should not be indicted.

We are further going to say that, if indicted, he is going to trial. If convicted, he will appeal. This is not a case where there's any plea bargaining in the future.

(END VIDEO CLIP)

POLANTZ: So, with this case against Donald Trump now in the system, there are conspirators who are uncharged, including his elections attorney, John Eastman, pledging to go to trial if there were to be more charges that materialize.

[11:05:03]

We don't have additional people in this case or related cases yet, but there's a long road between now and any potential trials. And we do expect Donald Trump to plead not guilty and get the case started today to head towards a trial.

BOLDUAN: All right, Katelyn Polantz is there where it's all going to be happening.

We can hear also the commotion building up around her.

For more on that and preparations on security, let's go over to Shimon Prokupecz, who is standing by.

Shimon, you could hear kind of -- you can definitely hear people gathering around where Katelyn's position is. A lot of that has to do with some of the security preps that you're seeing under way. What are you hearing from law enforcement?

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE CORRESPONDENT: Yes, there are a few of the supporters of the former president here, nothing like we have seen in Florida or New York City.

I mean, it is early, but yet, we're not seeing that many supporters out here. We're not seeing many people against the former president or necessarily people who are in favor of the former president, just not seeing those crowds yet.

You could argue it's early, but, by this point in all the other arrangements, we had seen a fair number of people gathered. But a lot of the security, a lot of the attention right now is focused on the backside of the courthouse, the backside from where Katelyn was just reporting, because this is where we expect Trump to enter.

We believe he's going to drive here along Third Street within his motorcade, and they're going to be bringing him. Back here into the courthouse. There are U.S. Marshals here. We have seen members, officers from, obviously, the Washington, D.C., police, with Secret Service agents.

We have seen federal law enforcement all out here. And what they have also done, Kate, here, is what I want to show you. They put these snowplows here as just an extra layer of security here to essentially prevent anyone from trying to cross these metal barriers.

We don't know if they're going to stay here. Maybe, once the motorcade gets here, they may move these trucks. But it's certainly an added layer that we didn't see in Florida's. We saw some of this in New York City, but we did not see this much security in Florida.

So, here in Washington, D.C., they're not taking any chances. And they certainly have ramped up some of the security. And just all across here along the courthouse here, this is one of the other entrances that they have set up metal barriers. They are letting people come in this way. The streets are mostly open right now. We will see if that changes as

the day goes on. But, right now, this is sort of the security of, metal barriers, these snowplows, and just law enforcement all around the building patrolling.

We have seen bomb-sniffing dogs. We have seen other law enforcement officials here on bikes, sort of just preparing, waiting for the former president to make his appearance. And, for the most part, like I said earlier, we have not seen the level or the numbers of supporters that we have previously -- previously seen for the former president.

But we will see what happens as the day goes. But the one thing for law enforcement here, with January 6, this is where it happened. The Capitol is just across the street. No one is taking any chances here, Kate.

BOLDUAN: Absolutely not taking any chances. And it's about -- we were talking to Andy McCabe a little earlier, as we were looking at some of the shots that you had.

And it's about the seen and unseen in terms of the layers of security and what they need to prepare for today as well.

PROKUPECZ: Yes, there's a lot of things going on.

There's a whole joint operations center, where you have the FBI, Secret Service, U.S. Marshals, the local police, the Washington, D.C., police, the Federal Protective Services. Everyone is working together.

And part of what they're doing is, they're monitoring social media. They're looking to see what people are saying, who is saying they're coming, who's saying they're coming here to cause any kind of disturbance, violence. That's what they're worried about mostly here. And so that's why they have set up these kinds of security measures, Kate.

BOLDUAN: Yes. It's great to see you. Great to have you there, Shimon. A lot going to be happening in the next couple hours there -- John.

BERMAN: All right, thanks, Kate.

So, one of the most important parts of this indictment revolves around the so-called fake electors scheme. The charging document details how Trump and his campaign attempted to use this slate of fake electors in seven key states to try to secure his victory, or at least halt the congressional proceedings.

With us now is CNN senior legal analyst and former federal prosecutor Elie Honig.

Elie, reading through the indictment, it really struck me how important the fake electors are to the case being made by Jack Smith. So, just review, exactly what was that scheme?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yes, John. So, according to the indictment on which Donald Trump will be arraigned in five hours from now, this was a coordinated scheme by Donald Trump and others to disrupt the electoral vote count in seven key swing states, all of which had truthfully voted for Joe Biden. They focused on Georgia, on Pennsylvania, Michigan, Wisconsin, New Mexico, Arizona, and Nevada.

[11:10:01]

Now, as to who was involved here, the players, according to the indictment, we already knew from reporting that Rudy Giuliani was the centerpiece here.

He was key to coordinating it. He's now been indicted -- excuse me -- mentioned in the indictment as Co-Conspirator 2. What we now know is, the DOJ is alleging Donald Trump himself was directly involved in this effort. Other people who helped that along, John Eastman, Co- Conspirator 2. Sorry, Rudy was 1. Let's get the numbers straight there.

And Kenneth Chesebro, who was Co-Conspirator 5, as well as this unknown Co-Conspirator 6. And the allegation is, they got together, they rounded up actual people in each of those seven states, and said, you're going to claim that you were the properly elected electors for Donald Trump.

Again, but those states had all gone for Joe Biden. So that's the core of what this conduct looks like.

BERMAN: And it's important in this indictment, because, as Jack Smith and his team lay out, this isn't about speech. Donald Trump can say what he said.

This was about action, stuff that was done.

HONIG: Yes.

So let's take a look at what some of the actual documents look like. Each of these, for each of the seven states, the documents really look remarkably similar. This is Arizona. And when you talk about action, what was done, they sent these documents into who? The U.S. Senate, the archivist of the United States, the secretary of state in this case for Arizona, and the chief judge of the federal court there.

So, when people say, OK, speech is one thing, action here is the sending in of these documents. Let's take a quick look at what the document says, basically. We're not going to read all this, but it says: We are the duly appointed electors for Donald Trump for president, for Mike Pence, for vice president.

Again, these are states that actually did vote for Joe Biden. And then the actual electors, the people, signed these certificate, saying: Yes, this is us. We are the people.

And they sent those documents into all those official authorities.

BERMAN: And again, this was -- these were actions that were taken based on things that Donald Trump and the co-conspirators said.

Also notable -- and you and I have both been careful as we say this -- this was intended, according to the documents, to not necessarily flat-out overthrow the election, not because they thought they were real, but just to obstruct it, just to slow it down. And that's important.

HONIG: This is a crucial nuance of the indictment. The allegation is not necessarily they wanted to fool people. Everyone could turn on CNN and see Joe Biden won those states.

But, really, the goal here was to disrupt the count, just create chaos and confusion, enough to create a delay, so that Mike Pence, in their plan -- he didn't do this -- Mike Pence could say: We have confusion about these states. We don't know. I'm not accepting their votes.

And then kick it over to the House of Representatives, according to the plan, which would then deliver the states.

BERMAN: Submit the fake electors, so there's a dispute, so it gets kicked back to the House of Representatives. That's a plot. If more people are involved, it could become a conspiracy.

HONIG: Exactly.

BERMAN: What are the defenses against this?

HONIG: So, this will not go undefended, of course, by Donald Trump.

They're going to argue, first of all, materiality, meaning, if you're going to charge that something's a fraud, you have to show that it actually would have had the effect of defrauding somebody, that somebody might have been trick. They're going to say: Everybody knew Donald Trump didn't win. We were just doing this for another reason. Specifically, these were being offered by us not as replacement electors, but alternate electors, just in case we won, we, Donald Trump's team, any of the then-ongoing court challenges.

They're also going to argue, this was speech. This was political protest. This was a way to petition government and basically just register discontentment.

Those will be the defenses. But these are really complicated by the fact that -- the allegation that the point here wasn't necessarily to trick people. The point here was to just create chaos and then let everything else play out.

BERMAN: Very interesting to see how the indictment pieces this all together.

Elie Honig, I know we will be talking about this again. Thank you very much.

HONIG: I will be around. Thanks.

BERMAN: Kate. BOLDUAN: Coming up for us: He calls it nauseating and despicable

behavior. Next, what else Donald Trump's former Attorney General Bill Barr had to say in his first reaction to Trump's indictment and what it reveals about the then-president.

Plus, is this indictment the most important case in our nation's history? One legal expert says, yes, it is. What he says is really at stake beyond Donald Trump's future.

That's next.

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[11:18:58]

BOLDUAN: Very soon, former President Donald Trump will be facing a federal -- who is now facing federal criminal charges, will be facing a judge and forced to answer to a federal judge.

Rick Hasen, a professor at UCLA Law -- School of Law and director of the Safeguarding Democracy Project, he writes this about this case in a new piece: "The federal indictment just handed down by special counsel Jack Smith is not only the most important indictment, by far, of former President Donald Trump. It is perhaps the most important indictment ever handed down to safeguard American democracy and the rule of law in any us court against anyone."

BERMAN: And Professor Hasen joins us now.

First of all, great to see you again.

That's a high bar, Rick, to say this is the most important case ever to protect democracy. Why do you say that?

RICHARD HASEN, UCLA SCHOOL OF LAW: Well, I don't use those words lightly.

And I didn't say anything like that about either the classified documents case, which is quite serious, and also the hush money business records case, which I think is a pretty minor one.

[11:20:05]

What makes this particular indictment unique is that it involves an attempt to try to subvert the results of the 2020 election, to try to overthrow American democracy, to turn the election loser into the election winner.

So far, Trump has not been held accountable for that. He was not convicted in the Senate. He was not facing any civil liability. This is the only chance to have deterrence of Trump and others like him who might try to steal an election going forward.

BOLDUAN: I want to get your take. I got a lot more questions for you.

But, also, in hearing from the former Attorney General Bill Barr and reacting to the indictment, he called the behavior that he read about in the indictment nauseating behavior. And it gets to what you're speaking about right here. Listen to Bill Barr.

(BEGIN VIDEO CLIP)

WILLIAM BARR, FORMER U.S. ATTORNEY GENERAL: You read through the indictment and his behavior in that indictment, and it's nauseating. It's despicable behavior.

Whether it's criminal or not, someone who engaged in that kind of bullying about a process that is fundamental to our system and to our self-government shouldn't be anywhere near the Oval Office.

(END VIDEO CLIP)

BOLDUAN: And, Rick, Bill Barr said a whole lot more in that conversation with Kaitlan Collins.

What did you think of that?

HASEN: Well, I was more taken by what he said at the end of the interview. I was on with Kaitlan right after him.

I heard Bill Barr say he still didn't know if he would vote for Donald Trump if he were the Republican nominee in 2024, which tells you a lot about the state of the Republican Party, I mean, after saying it's nauseating, after saying it's despicable and undermined democracy.

I mean, the point is that there is nothing like this. This is not like a normal dispute between liberals and conservatives, Democrats and Republicans. It's about whether we're going to have a rule of law and have democratic elections. And there's got to be a line that someone could cross where you just can't accept them, regardless of your party.

That's not where the country is right now. And I think we really have to hope that this trial, if it does happen before the election, can bring people focused on this issue and see what kind of danger it is, when American democracy is undermined.

BERMAN: But one of the issues here, Professor, is, people want to be able to go to a document, say, the Constitution or something else, and say, ah, there is this statutory language that makes clear that the behavior was criminal.

Bill Barr, in his statement there, he said, whether it's criminal or not, he doesn't think Trump should be anywhere near the Oval Office. But that "whether it's criminal or not part" is key here, right? I mean, two questions. One, A, what do you think happens?

HASEN: Sure.

BERMAN: What do you think happens if the jury decides it's not criminal?

HASEN: Well, I'm not convinced that we're necessarily going to get to a jury, because this is a very complex case. Unlike the classified documents cases, it involves many witnesses.

We may not see a jury before 2024. But, if it does, and the jury reaches its verdict, then we'd have to accept that verdict. But I think there's an education function that's going to happen when the public can see the evidence.

And more to your point about, is this a crime,there are specific elements that have to be proven, that Donald Trump, for example, corruptly obstructed the counting of the Electoral College votes by what he did. There are elements that have to be proven. That's -- you're not going to find that in the Constitution. Specific crimes are not listed in the Constitution, but no person is above the law.

And if Donald Trump can be proven beyond a reasonable doubt to have committed these crimes, he should be punished in the same way that any other person who would try to commit these crimes would be punished. That's what the Constitution talks about in terms of equal justice under the law.

BOLDUAN: In terms of people wanting to look for a paint-by-numbers and where the boundaries are, what you do and where you break and where to break glass, the way Van Jones was talking to John -- John and I about it yesterday was the fact that the transfer of power really hasn't ever gotten -- gone into extra innings before in this way.

And it did this time. And this is what happened. So, what can't -- what should people -- what are -- you are talking about an education piece of this, but what should people know? How much gray area is there? And how difficult does it make this case?

HASEN: Well, I'd go back to Bush V. Gore in 20 -- in the 2000 election, hard-fought election, many bad feelings on both sides.

The case went all the way to United States Supreme Court, which resolved the dispute in a controversial way, and then Al Gore got up and he said: I don't agree with the Supreme Court, but I accept the result.

That was a peaceful transition of power. When conservative George W. Bush left office, and Barack Obama came in, nobody was questioning, would he actually leave the White House? I mean, we're in a totally different realm now.

After Donald Trump had his chance to bring over 60 lawsuits to try to prove fraud, and succeeded nowhere, to raise irregularities, and succeeded nowhere in showing that the election results were in question, he engaged, according to the complaint, in an illegal scheme to try to come up with fake electors and other ways of undermining the peaceful transition of power.

[11:25:14]

We have never seen anything like that. That's why it's somewhat unprecedented to bring a prosecution like this, but it's only because the actions of Donald Trump, as alleged, were unprecedented as well. BERMAN: And if he does -- if he is found not guilty, or never goes to

trial, does this open the door for this type of behavior in the future?

HASEN: Well, you may remember, when the Senate did not convict Donald Trump after the House had impeached him for these actions, Mitch McConnell, the Senate minority leader, a Republican, said, it's going to be civil and criminal liability that's going to hold Donald Trump responsible.

Now, of course, we're taking a gamble on whether the criminal process will work, and will work in time. There was a chance earlier to politically deal with this, which is what the Senate should have done. Didn't happen then.

So I am worried about our democracy. But we have to leave these questions to the courts and to the juries to make their best determination based on the evidence that will be presented.

BERMAN: Professor Richard Hasen, always great to have you. Thanks so much.

BOLDUAN: Thank you.

Coming up for us: So, as everyone is getting ready to witness Donald Trump's arrest and arraignment today over what we were just discussing, his efforts to overturn the 2020 election, new polling shows the percentage of Republicans who think President Biden's 2020 win was illegitimate, that number is ticking back up.

A member of Congress joins us to react next.

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