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Trump Doesn't Have Presidential Immunity from Lawsuits Over January 6, Appeals Court Rules; Trump's Attorneys Appeared in Fulton County Court for The First Time in Georgia Election Fraud Lawsuit; House Votes to Expel Santos from Congress in Historic Vote; JUST IN: House Votes to Expel Santos from Congress. Aired 10:30-11a ET

Aired December 01, 2023 - 10:30   ET



?JOHN BERMAN, CNN NEWS CENTRAL CO-ANCHOR: CNN Crime and Justice Reporter -- Senior Crime and Justice Reporter Katelyn Polantz is with us, as well as CNN Senior Legal Analyst Elie Honig.

Katelyn, first, tell us about the case here.

KATELYN POLANTZ, CNN SENIOR CRIME AND JUSTICE REPORTER: This case, we've been waiting for this decision for a year, and it has an impact on every lawsuit that people have brought to sue Donald Trump, to hold him accountable for what happened on January 6th. The riots at the Capitol building, Capitol police officers had sued Democratic members of Congress. And Donald Trump had said in court, everything that I did while I was President should be immune. You can't sue me over that. That was his argument.

And an appeals court, the federal appeals court in Washington, D.C. said today, no, that is not the case. These lawsuits against Donald Trump can go forward. I want to read some of the things that the court wrote. They wrote that the president does not spend every minute of every day exercising official responsibilities. And when he acts outside the functions of his office, he does not continue to enjoy immunity.

So, they're drawing a line saying that there are things that you can do while you were president that can be held accountable in court. That is a major decision, a major evolution of what the law is. The other thing that this, three judge panel in the D.C. Circuit Court of Appeals is writing is that they are saying that there are campaign actions and there are president actions -- presidency actions.

And what is -- what the president does while he is campaigning for reelection, including that rally on January 6th, that can be considered a campaign action. And that is something that you can move forward with lawsuits against. There are things that a president does as president that you can't sue over, that he does enjoy immunity over, but not in this situation.

Now, Donald Trump is still going to be able to contest the facts of this case. And whether these people are able to get some sort of compensation or win in this case. But at this stage, this is a very consequential ruling. It affects not just these lawsuits. But we finally have an appeals court weighing in on the parameters of the presidency and where a president is protected and where he is not under the law. Very well could be something that the same appeals court is asked to look at in the coming weeks related to Donald Trump's criminal case. And of course, this is the sort of decision that is very likely to go to the Supreme Court as well if Donald Trump wants to take it there.

SARA SIDNER, CNN NEWS CENTRAL CO-ANCHOR: Katelyn, stay with us for just a second.

I want to go to Elie Honig now. Katelyn, just get laid out why this is so significant. There is this thing that we have here in America. No one is above the law. A lot of people think of that in the criminal sense. But this court, and correct me if I'm wrong, is saying this is also applicable in the civil sense with civil lawsuits and the president cannot get away with -- can be sued by anyone if it's not a part of his capacity as president. Is that how you read this, Elie?

ELIE HONIG, CNN SENIOR LEGAL ANALYST, FORMER ASSISTANT U.S. ATTORNEY, SOUTHERN DISTRICT OF NY, AND FORMER FEDERAL AND NEW JERSEY STATE PROSECUTOR: Right, Sara. So, this is an enormously consequential decision, and let me explain why. When it comes to this notion of immunity, there are some things we do know and some things we do not know.

Here's what we do know. A federal official, the president on down cannot be sued civilly if the conduct has something to do with their actual job. If it has something to do with the president acting as president, something to do with a federal prosecutor like I once was acting as a federal prosecutor. But if it's outside of the official job, then yes, you can be sued. But what the court of appeals has said here is because what Donald Trump did in and around January 6th was outside the scope of the presidency. Yes, he can be sued.

Now, here's the bigger issue that Katelyn was referencing. Donald Trump is currently making a similar argument with respect to the criminal charges pending against him in Washington D.C. relating to the 2020 election. And he probably will make similar arguments elsewhere. We do not yet know, but we may find out, whether there is such thing as criminal immunity for a federal official like the president.

But this is a really important decision because even if there is such thing as criminal immunity, now we have a court of appeals saying even if criminal immunity exists it wouldn't apply to Donald Trump because what he did relating to January 6th was outside the scope of his official job as president. So, big ruling because Donald Trump can now be sued civilly, and it also, I think, gives us some insight into what could happen in this argument in the criminal context, too.

KATE BOLDUAN, CNN NEWS CENTRAL CO-ANCHOR: This is also significant, Elie, not just for Donald Trump, but just also for the office -- like the office of the presidency?

HONIG: Yes. Yes, for sure, Kate. This does go beyond just Donald Trump. This goes to the office of the presidency itself. This reaffirms that if a person is doing the job of a president, they cannot be sued. But if you're outside that scope, yes, you can be sued. Core principle that relates to the powers of the presidency in general.


And again, we are, within the upcoming months, going to get an answer to the next question, the bigger question about is there any form of criminal immunity for, again, it could be the president, but it could be any federal official. It could be the White House chief of staff. It could be a secretary of one of the cabinet positions.

So, we are going to get that answer in the course of Donald Trump's criminal cases coming up soon. But again, the core ruling here is Donald Trump, yes, he can be sued civilly because his actions around January 6th were outside the scope of his job as president.

BERMAN: Yes. And again, this is not in the constitution. None of this stuff is in the constitution. It is not like the framers envisioned this type of issue, which is why now there needs to be some kind of legal rulings on this, particularly, as Katelyn said, in separating what presidenting is and what campaigning is, and where the lines are there.

Fascinating to see Supreme Court will likely get involved here. Katelyn, while this is all happening, still more breaking news. In Georgia right now, Donald Trump's attorneys, you can see live pictures there of Judge Scott McAfee there, they are in court in this state election case against Donald Trump. Making a key argument now. What are they asking for?

POLANTZ: Well, they are asking for a lot of things. There's a lot of things that they have to address in this case because Donald Trump's lawyers have not been before this judge in person before. And we are in a position in this case where the big question is timing. There was that trial that had been set to go forward against his two co- defendants, Sidney Powell and Ken Chesebro. Both pleaded guilty and preempted that trial from happening.

And so, now there's a giant question hanging over this Georgia case. When is Judge McAfee going to put it on the calendar? And how long are all of the different parties going to have to make their arguments, and to do the things that they want to do to get addressed in court? There's also some question about exactly what Donald Trump's team is going to need to do going forward. In that he has been hopping on what other defendants in the case have been arguing, but his lawyers have not been out there on their own.

Now, we see them in court and we're going to -- this hearing, I believe, just started. So, we're going to be watching to see exactly what happens there and where Judge McAfee takes it.

SIDNER: OK. I want to go to you, Elie Honig. You know, we're looking at these pictures of the judge, and this is the first time really that Trump's attorneys have been there in person defending their client. And I think they're looking at one of the big issues here is whether charges can be thrown out on First Amendment grounds. Can you explain what that is all about? How they're trying to use the First Amendment in this particular case in Georgia when it comes to the election subversion case that Trump is facing along with several others?

HONIG: Sure, Sara. So, the argument that Donald Trump is making here and also in the related federal case in Washington, D.C. Is that everything he did leading up to January 6th is contesting of the election was protected free speech. Even if he repeated falsehoods, they argue falsehoods can be protected under the First Amendment.

And so, they're asking the judge in this case to throw out the charges. But what I think the judge is very likely to do, and he's had this response when other defendants in Georgia have made similar arguments is that's premature. That's ultimately an issue that you'll have to litigate at trial. That's an issue that will go to the jury eventually, and potentially to the judge after the jury. And so, I think what we're likely to see here is the judge to say, look, I'm not going to rule you win or you lose on the First Amendment here and now. That's going to be an issue for the jury. That's going to be an issue for trial.

BOLDUAN: All right, Elie, thank you so much. Katelyn Polantz, thank you for tracking multiple avenues of breaking news today. We're going to keep an eye on that courtroom in Fulton County, Georgia. As we said, this is the first time that those attorneys are before the judge. We have cameras in that courtroom. We're keeping a very close eye on that.

But also, for us, we're going to head back to Capitol Hill where that big vote on whether or not the House is going to expel George Santos. That vote is about to get underway. We're going to bring it all to you, next.



BOLDUAN: Any moment now, a historic vote is set to take place on Capitol Hill in the House of Representatives. Republican Congressman George Santos, he could soon become the sixth lawmaker to ever be kicked out of the House. The big vote to expel him or not is about to get underway. Will that happen? Where is the momentum? It seems to have been shifting this morning because all four top Republican House leaders are now -- have now publicly come out to oppose expelling Santos.

BERMAN: That's really a huge deal. House leadership seems to be moving in to rescue George Santos. House Speaker Mike Johnson is going to vote against expelling him. This last-minute move by leadership to save him. And let's remember who George Santos is. He grabbed headlines for lying about his education, on his past. He was the focus of a damning ethics report that found he stole from donors and went on shopping sprees for Botox and OnlyFans.

BOLDUAN: You don't go on a shopping spree for Botox, but still. BERMAN: OK. I -- but I didn't even know what OnlyFans was. None of that. I don't even know where any of this stuff is. And then there are federal charges. There are 23 federal charges against him, ranging from fraud to identity theft.

SIDNER: Now, we've got team coverage, of course, of this historic vote for you this morning. CNN's Manu Raju and Melanie Zanona are joining us from Capitol Hill.


Manu, you have been chasing down the folks on Capitol Hill, as you always do, getting some reaction. What are you hearing this morning? Because you've got, Speaker Johnson to say, look, I am going to vote not to expel him. And it looks like the cards have now fallen, that the leadership is sticking with the speaker.

MANU RAJU, CNN ANCHOR, INSIDE POLITICS SUNDAY AND CNN ANCHOR AND CHIEF CONGRESSIONAL CORRESPONDENT: Yes, that's where it is at the moment. And the question is going to be where a lot of these members come down. There are a lot of them who are simply, just will not say where that they will do. They're being coy about all this. They're probably going to wait and see at this vote, which is going to happen any minute.

They're going to call this vote and we're going to go through it. It's actually going to go pretty quickly, probably about five minutes or so, when they actually call it, but they can call it probably in any minute. And then a lot of those members are going to sit back. They're going to watch to see where the votes ultimately come down and then decide whether or not to kick George Santos out of the House.

This, of course, would be unprecedented. Never before has a member been expelled for having not been convicted of a crime, not participating for helping the confederacy in the Civil War. So, in this -- certainly, something that has not happened in 21 years if Santos were to be expelled.

But the betting at the moment, even though it's uncertain, even though no one knows for sure, where the vote count will be. The betting is that he will survive this. We'll see if that ultimately comes to pass. But the reason why people believe that is because of the position of the Speaker of the House Mike Johnson which carries significant weight.

I talked to Mike Lawler, who's a member of the New York Republican, who -- I asked him about the impact on this. And I also talked to another New York Republican who's pushing for his ouster, Marc Molinaro, about the impact of Johnson's vote, support, opposition to the expulsion. Both of them downplaying it, saying he's only one colleague. It doesn't make much difference or not.

But those same proponents of pushing out George Santos are not confident they have the votes. There's a belief that the momentum has shifted. George Santos could survive it. And perhaps we'll have to wait for whether or not he's convicted in his trial where he's been charged on 23 counts before he ultimately meets his fate in the House of Representatives.

But we'll see just in a matter of moments where those Republican members ultimately come down after this very, very emotional and fraught debate as Republicans are hoping, who are pushing him out, hoping they can get 77 of their colleagues to vote with Democrats to make it the two thirds majority and make this historic vote happen on the floor in just a matter of moments, guys.

BOLDUAN: Yes, and this is the third attempt to push him out the first. The first -- this is the first attempt -- the first vote on this since that explosive Ethics Committee report came out. This move really being kicked into motion by the chairman, the Republican chairman of the House Ethics Committee and how this is all going. But if we have a live picture from the House floor from C-Span, let's throw it up because they're -- Republicans, all House members are starting to gather in the House chamber.

And Melanie is -- yes, this is -- obviously, this is not a vote count. This is on a matter that is happening before this vote, so disregard the numbers. But you see House members on the floor milling about. Let's go to Melanie Zanona. You're getting some word and some color from what's going on inside the chamber about what's about to happen, Melanie.

MELANIE ZANONA, CNN CAPITOL HILL REPORTER: Yes, we're told that George Santos has entered the chamber ahead of these high stakes vote on his future. And he's sitting alone in the back of the chamber. There was a member, Tim Burchett who walked up and gave him a little fist bump. Another member, Anna Paulina Luna, was talking to him briefly. But at this moment, he's really keeping to himself and he hasn't been talking much to reporters today. Heading into the chamber, he told our colleague Annie Grayer that he has no final words.

A bit of a departure from his posture yesterday when he was very defiant and had a lot to say ahead of this vote. But at this point, there are some defenders of George Santos, including the top four Republican leaders in the House, which is a big deal for him. It does appear that momentum is shifting back in his favor.

But it's important to point out that a lot of these members who are deciding to vote against expelling him, they're not doing it because they have some love for George Santos. In fact, they say what they saw in that ethics report was damning. But their concerns are about the precedent of expelling a member who's never been convicted in a court of law yet. And privately, a lot of members aren't saying this out loud, but they're certainly thinking it, is they're concerned about chipping away at their already razor thin majority.

So, we'll see whether this effort succeeds. If it does succeed, obviously, it would be a rare and dramatic step around here. There would have to be a special election to fill his seat. That would be something that Democrats would have a very strong chance at flipping, given that it's a Biden district, a blue district, there would be a lot of money spent in the race.

But if Santos survives, it would be a huge disappointment for those Republicans who have been pushing to oust him, particularly those New York Republicans in the freshman delegation who have been trying to kick him out. It would be a massive setback for them, and it's unclear whether they would be able to succeed at all and would likely ensure that Congressman Santos remains a congressman, at least for the remainder of his term, guys.


BERMAN: All right. Melanie, Manu, stand by.

With us now, CNN Political Director David Chalian and CNN Senior Political Correspondent Abby Phillip.

Abby, since we've been on the air, this story has shifted substantially from what could be George Santos last few hours in Congress to a story about House leadership. House leadership, they say they're not whipping the votes, but all four members now say they're going to vote to keep George Santos in the House of Representatives. Why? Is it precedent or is it the difference between going from four- vote majority to a three-vote majority?

ABBY PHILLIP, CNN ANCHOR AND SENIOR POLITICAL CORRESPONDENT: Yes, I mean, look, I can't get in their head, John, but I think it's the math. I think it's just the sheer numbers of it all. They don't have a lot of wiggle room. And they have a huge agenda coming up. I mean, remember, we're in a period right now where the government of the United States is being run by a continuing resolution, a short-term bill. They still have to pass budgets in the coming weeks and months. They have to fully fund the government, and they have to do that largely with a fully united Republican conference.

Every single vote matters. Every single vote counts. And even George Santos's vote counts. Republican leadership, if you probably put them on truth serum, they don't want to deal with this, they probably don't even like George Santos a whole lot, given all the headaches that he's put them through. But I think at the moment, probably the most important factor here is the fact that they need to hold on to every single seat, this is not a seat that Republicans expect to be able to hold on to if George Santos is expelled.

They also, on the precedent point, I think they have a little bit of a leg to stand on here, because over in the Senate, Bob Menendez, who's been accused of very serious allegations, you heard this from Matt Gaetz yesterday on the -- the House floor, he's not been expelled. And I think Republicans feel like they can make that argument, given that on the Democratic side, there is another member of the Congress who is not being subjected to a similar fate as George Santos.

SIDNER: Yes, and that point has been made by several members of Congress, we heard one of them today. We heard Tommy Tuberville saying, look, there's a lot of sinners in Congress. And it's interesting to see Congress members beating up on Congress that they are a matter of.

We are going to go now to the floor and listen to what's happening. It looks as though they're going to begin this vote. Let's listen in. BOLDUAN: It's going to be five minutes. They can hold it open for longer. But as Manu suggested, it's not likely to go much longer than that.

SIDNER: You're seeing how quickly right now.

BOLDUAN: You can see how quickly people are actually voting.


BERMAN: And just watch the bottom number on the left under yea. Now, I guess we don't know if there are 435 members voting today, at least I don't. If there are, that number needs to be 290 to expel George.

SIDNER: That's right because it is two thirds supermajority needed in this particular action.

I want to get to you David Chalian, looking at all this and hearing how this really what might be considered a major shift from thinking he was going to get pushed out and expelled, to now seeing this shift. What does that tell you about leadership even though they aren't whipping the votes, they are making their statement very clear by saying they are not voting to expel?

DAVID CHALIAN, CNN POLITICAL DIRECTOR: Right. You know, we heard Speaker Johnson earlier in the week say that this should be a vote that is a matter of conscience. I would imagine all votes for members of Congress should be a vote of matter of conscience. But he said that he was uncomfortable with it. And then today, obviously, the dramatic development of him saying that he is indeed going to vote against this resolution to expel Santos.

And as you're discussing, I mean, I think it is -- both things can be true, right? It could be both the process precedent and the politics that are dictating motivations here. I do think it's worth noting, guys, if indeed Santos survives this, and we'll see, you're up to 200 yea votes now as you're looking for that two thirds majority. And as John noted, if all 435 members are present in voting, that'll be 290 to get him expelled.

But I would just say if indeed he survives this, Democrats would indeed get the best outcome here in the sense that they get to vote to expel him and yet keep him as a poster boy to run against for the -- against the Republican Party overall over the next many months.

BERMAN: And again, the other number -- I'm sorry, Kate. Go ahead.

BOLDUAN: No, I was just going to say, just keep an eye on what is happening. What you're seeing is the Republican number of who is voting in the -- in favor of expelling the yeas is at 76 right now. 70 -- now it's at 77. If all members are voting -- in the chamber and voting, they have now -- and all Democrats are voting to expel him.


They have potentially passed the threshold of expelling him. However, an important note, they can change their votes. So, we do not call this. You do not -- no one declares anything until the gavel lands. They still have two minutes plus left on here. Let's leave this up, guys, and bring up Manu Raju as well.

BERMAN: Yes, just again, this number right here, 85 is absolutely enough to boot him. If they don't change those votes right now. I mean, that's --

BOLDUAN: For context, let's talk about the last vote and how he -- what he survived. The last vote to expel, it was 179 in favor, that included 24 Republicans voting to expel. As you can see here, it's far beyond that now and past the threshold that we have been discussing. However, again, lots of caveats until it happens. It doesn't happen.

Manu -- I think Manu is ready. He's standing on the steps. Manu, you hearing anything out there? What are you hearing?

RAJU: Yes, I'm ready. Yes. I mean, yes. This is -- it looks like George Santos is done. It's 88 -- 89 Republicans are voting to expel him. The magic number was 77. So, unless something dramatically changes, this will be a historic and unprecedented vote where George Santos will be the first member ever to be expelled who has not yet -- not been convicted of a crime, did not participate as a confederate in the Civil War.

But these allegations, apparently, to be so damning that a member said that it is enough. It is time to kick him out of the chamber. I just talked to one of them, Carlos Gimenez of Florida. He said that -- I asked him about the precedent. Is he concerned about setting the precedent? He said, well, the precedent shouldn't be lying and stealing from your donors, that should be enough to get you out of Congress. Apparently, that's how a lot of the Republicans felt here.

89 Republicans right now are there. It was 90 Republicans. There are still 48 people who have not voted yet. They need to get that magic number of 290 if all members are present and voting, and we'll see ultimately if they can get there. But at the moment, he is on his way out of Congress, which would set up a special election in a seat that Democrats could pick up. It could make Mike Johnson's job even harder to advance his agenda because loosing --

BERMAN: They just got to 290 --

RAJU: -- one member --

BOLDUAN: They just said 290, Manu.

RAJU: -- to a nearly divided House. So, difficult -- it just hit 290. 290 votes. George Santos is poised to be expelled from Congress on -- with support of Republicans and Democrats in this historic vote. Unexpected as we were suggesting --

BOLDUAN: No kidding.

RAJU: -- because of Mike Johnson's opposition. But the decision by the Speaker to say, vote your conscience and not twist arms, not whip members in line. Obviously, many members said enough is enough. It's time for George Santos to go. Guys.

SIDNER: Manu, this is a real shift. We have seen, sort of, the shifting tides, which is why all morning long we've been saying nobody knows what exactly is going to happen until those votes are counted. It is now 300.

BOLDUAN: Sara, look at the live picture --

SIDNER: The total are now 300 --

BOLDUAN: -- right now, you can see George Santos is standing right there.

SIDNER: You see George Santos standing there with his jacket on his shoulders. His jacket on his shoulders. He's going to have to pack up his things and go. He has just been expelled. The first --

BOLDUAN: Well, no, no, no, no, no. Wait until they call it, nothing's going to --

SIDNER: I know. But he -- the vote has shown he has just been expelled. OK. Manu is having a quick conversation there. But I just wanted the significance of this is that the vote has been taken. They can change them, but it doesn't look like that's happening. The Republicans, 101 so far have voted to kick George Santos out. 305 total votes. You needed 290 in order to expel him. This could be a historic moment.

Let us go to Melanie Zanona right now to give us the very, very latest and what she is hearing where she is. Where are you, Melanie?

ZANONA: Yes, I'm right outside the House chamber right now. And looking at these vote titles, you see Republicans are pretty evenly split here. 101 -- 102 Republicans now voting to expel George Santos. That is a very big number that was far more than what was actually needed in order to expel George Santos. Now, they haven't brought down the gavel yet, so it's not final. Nothing's final till it's final around here. But it certainly looks like George Santos is on track to become just the sixth member ever expelled and bringing an end to his very brief congressional career that was filled with drama, scandals, and lies.

Now, in terms of what happens next year, I mean, this is going to be treated like a vacancy. So, the clerk will assume control of his office, will make decisions on behalf of his office. George Santos, for his part, said that he will go home and he will pack up his office and head back to New York tomorrow, and that he will go, sort of, quietly in to the night.

And then at some point the new -- the governor of New York is going to have to call a special election in the next 10 days that would set up a special election sometime in the next 70 to 80 days from now, it's going to be a tough race because this is a Biden seat. It's a blue district. This is something that Democrats have a very strong chance at flipping. And in the short term, you know, it's going to narrow their already thinning out majority -- BERMAN: Melanie, hang on for a second. We want to get to Manu Raju

who's got someone with him on him. Manu.

SIDNER: George Santos there.