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Supreme Court Rejects Special Counsel Request To Fast-Track Trump Presidential Immunity Dispute; U.N. Adopts Resolution On Gaza; U.S. Abstains. Aired 3-3:30p ET

Aired December 22, 2023 - 15:00   ET

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

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[15:01:29]

UNIDENTIFIED MALE: This is CNN BREAKING NEWS.

BRIANNA KEILAR, CNN HOST: And we're following breaking news out of the Supreme Court, the justices have rejected Special Counsel Jack Smith's request to fast-track the dispute over Trump and presidential immunity. So what this means is that they will not leapfrog the appeals court process and hear this case now. It also means the question of whether Trump can be prosecuted for alleged crimes that he may have committed while in office is still very much up in the air.

JIM ACOSTA, CNN HOST: It plays into that strategy of delay, delay, delay if you're on Trump's side of things. And we have our full slate of reporters and analysts tracking all of this.

Evan, take us through this ruling. It was a one-sentence order but with major implications.

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Right. It's a simple one sentence that they deny certiorari for this big question that Jack Smith has - had raised, which is the question of whether the former president has immunity for the actions that he took while he was in office during those closing days of the 2020 Election season.

And also - he also - also a thing that - the other thing that the former president is raising is that because, he was impeached by the House, but acquitted by the Senate, that it would be a double jeopardy problem. That the Justice Department cannot then bring charges related to some of those same actions. And so those are the two questions that are pending for the Supreme Court.

The Supreme Court, with this action, is now saying that they're going to wait it out. They're going to wait for the appellate court for the D.C. Circuit.

And let me just say, the appellate court also seems to be very, very aware of the issues. And very quickly made sure, put some very tight deadlines on the Trump team, on Jack Smith's team. And they've now ordered oral arguments on these very questions on January 9th.

It may very well be, I mean, we're trying to read between the lines because we don't know why they made this decision to deny Jack Smith's request. But in the time since Jack Smith went to them, the appellate court has certainly given a very tight deadline and shown that they're very willing to take this on very quickly.

And so it is possible now, obviously, that the Supreme Court will get this question very quickly back, maybe in the next few weeks. What we do know is that this means that the March 4th schedule for a trial, for Donald Trump to go on trial for the first time, that is almost certainly not going to happen.

KEILAR: And, Elie, while we talk so much about the timeline here and how the legal timeline lines up with the election timeline, you pointed out Smith didn't mention the election timeline in this request. Tell us why.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Well, I can't speak for why Jack Smith refuses to state that he wants to get this in before the election, although that's quite clearly the case. I think any fair- minded observer understands that's exactly why he's pushing so hard. But he refuses to say it because it would be contrary to DOJ policy to say, I'm taking actions with the election in mind.

And, Brianna, this was the weakness in Jack Smith's briefing. He said over and over, yes, this is a very momentous, important case. Of course it is. But that's not the question when it comes to whether it needs to be expedited.

When it comes to the question of whether it needs to be expedited, it's - is there a need for speed here? And because Jack Smith was unwilling or unable to say, I'm trying to get this in before the election, all he was able to give was a bunch of generalities and apparently the court found that unpersuasive and they've rejected his motion. And as Evan said, as a result now, this will go to the Court of Appeals, and then perhaps to the Supreme Court but it's absolutely going to cause delay.

[15:05:00]

ACOSTA: And, Norm, the Supreme Court could have done this, right? Is it - if it's just going to come back to them anyway, why make everybody go through these hoops?

NORM EISEN, CNN LEGAL ANALYST: I don't think there's a single member of the Supreme Court or their clerks or anybody in that building who is not aware of the reason that Jack Smith wants to expedite it.

ACOSTA: Yes.

EISEN: They knew that, but they chose to write a political insurance policy for themselves. If they were to go out of the normal course, and I think it was right for Smith to ask, because I think he was right. But if the Supreme Court had granted, they would have been depriving themselves of the cover represented by a D.C. Circuit opinion. This is a panel looking at their prior decisions that is going to uphold Chutkan very likely. At least two, maybe all three, say there is no presidential immunity. Now the Supreme Court will have two opinions, so it makes them seem less political, less like they're inserting themselves into the discourse and it's headed there on an absolute rocket docket. It's been ordered for very fast briefing, fast oral argument, we'll get a fast opinion. And as Evan says, it will likely be back in the Supreme Court towards the end of January.

KEILAR: Yes, we talk a lot about, look, we're coming up against this deadline and it's not the election, it's 60 to 90 days before the election and shouldn't voters have this information, Evan. But I also wonder if on the front end of this, DOJ's initial slowness to get rolling on this, if that's something that we should also be thinking about how that has squeezed all of this in the opposite direction.

PEREZ: Right. Look, the Justice Department, this - yes, it was slow for our sort of the way we look at it from outside. But certainly from covering the Justice Department, I can tell you that this was fast because they have five years, statute of limitations for most crimes and they often take as much of that time as possible, especially when it's an important case where they want to make sure they get everything right.

And let's not forget that the former president did a lot to get in the way of that. He fought access to a lot of things. They were fighting with him for access to some of his papers, some - on executive privilege. There were all kinds of roadblocks that Donald Trump himself made himself, availed himself of and helped make sure that none of these cases could happen so quickly, which is why you see - you saw the impatience from the prosecutors in Georgia and in New York to say, well, if DOJ is not going to move quickly or not able to do this quickly, we're going to take the mantle.

ACOSTA: Yes. What do you think, Joan?

JOAN BISKUPIC, CNN SENIOR SUPREME COURT ANALYST: Yes, I was just going to - just to tie up just what a heavy lift this was for Jack Smith. It normally takes only four votes to grant a case, but in this case, to jump over the appellate court, it took five. And when you look at the makeup of this court, it was a very tough audience.

Back in 1974, the court was ready to come in and solve this important presidential question involving the Nixon-Watergate tapes. Here there was a - probably already some reluctance.

By the way, we want to make sure that our viewers know that we do not know what the vote was behind the scenes. They did not reveal the vote. They did not reveal whether anybody dissented. Perhaps somebody was writing a dissent and in the end decided not to make that public. I'm sure Chief Justice John Roberts wouldn't have wanted any dissent to be public. So that's the first thing, just how difficult it was.

And then in terms of the arguments, there were really competing arguments about just how the court should understand this case. Trump's lawyers really stressed the political calendar, saying, look at what's happening here. You will be coming in and be looking partisan to your point about do they want to appear that way. Whereas Jack Smith, obviously, avoided any reference to the election, but also talked about how irrespective of the politics of the day, think of what your role is and really tried to get them on the role that they have.

But in this day and age, it's just hard for anything to be considered without the political calendar in their mind. So I would say that they are the only ones who can decide this. I think they're going to have to decide it.

And Donald Trump has a couple options after that panel, the appellate panel rules. He can ask for the full en banc.

PEREZ: Yes.

BISKUPIC: That might - I might be repeating something that was said before I came to set.

PEREZ: Right, no, that's a great point. That's a great point to add.

BISKUPIC: Bit - so we're talking weeks upon weeks upon weeks, and then to even establish a jury to put a jury together to have a trial is going to take some time. So this move today really immediately just look - opens up an expanse of time.

Let me just say one thing about the model that Jack Smith was pushing the court to do. When the Supreme Court took the U.S. v. Nixon case on - the special prosecutor in that case back in '74 had petitioned on May 24th. Within one week, the Supreme Court had granted it. We're already beyond that now.

[15:10:03]

And then turned it around, as you had said earlier, the whole thing was turned around in a matter of two months from the oral arguments to the decision was 16 days. Even if the D.C. Circuit rules swiftly and there's no reason not to think it will try to rule swiftly because they've indicated that there are so many ways that Donald Trump can use the rights he has to slow that down again, asking for rehearing or just trying - just kind of slow walking it through the Supreme Court that could easily get us beyond its current term, which was another thing that Jack Smith said. The current term ends at the end of June and what he feared is that we would be pushing past that.

EISEN: But there are also accelerating factors that may come into play. The Supreme Court, when it gets it, may simply say, as they did in Trump v. Thompson, the big case about whether Congress could investigate Trump that could pierce the executive privilege cert denied. They did the same thing when the special master was appointed. Eleventh Circuit overturned that in the Mar-A-Lago documents case. They refused to hear it. That could be an accelerant, Joan.

Another thing that could accelerate, the D.C. Circuit has the power to turn the stay of the case down or off. Personally, I think Jack Smith was too conservative and not fighting to say, I want to do those things that will keep the case going, like jury selection.

PEREZ: Right.

EISEN: I just want to panel the jury. This panel is a - going to be by reading their opinions, studying their careers, they think this immunity is inimical to American law. It's borderline frivolous. Most legal experts think that they could remove the stay. That speeds the case up again.

We're in unknown territory in terms of timing. But we do know this, I salute him. Alvin Bragg never took his foot off the brakes. He didn't count on all these projections and schedules and orders. He said, I'm a prosecutor. I've got a trial date, March 25th 2024. And he's reaffirmed that he's ready to go.

So we will see a case and then that brings in this polling where the American people in that big New York Times-Siena poll, a 14-point swing in the six swing states if there's a conviction. So it is going to be a very unpredictable calendar politically and legally in the first six months of 2024.

ACOSTA: A lot of moving parts, yes.

KEILAR: Thank you all so much, certainly. We're going to have more on this breaking news.

The Supreme Court rejecting a request by Special Counsel Jack Smith to expedite this decision on whether former President Trump has immunity from federal prosecution for alleged crimes that he committed while in office. We'll be right back.

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[15:17:03]

UNIDENTIFIED MALE: This is CNN BREAKING NEWS.

ACOSTA: And we're back with our breaking news from the Supreme Court. Just moments ago, the justices rejected Special Counsel Jack Smith's request to fast-track the dispute over Trump and presidential immunity.

KEILAR: So what this means is that the case now is heading back to an appeals court for oral arguments on whether Trump can be prosecuted for alleged crimes while he was in office. That is expected to happen here in a few weeks.

We have CNN's Jeff Zeleny back with us now to discuss. We also have political commentator Scott Jennings with us.

Jeff, just give us the broad - the most important thing here is how this is going - I want to say this is the most important thing, but I think that it is very significant how this is going to impact the 2024 race. These things are inextricably linked.

JEFF ZELENY, CNN CHIEF NATIONAL AFFAIRS CORREPONDENT: They definitely are. So short-term, this is a victory for former president, Donald Trump, without a doubt. And the reason the short term is important is because voting is just a little more than three weeks away.

Now, had the Supreme Court ruled the other way today, it probably would have been more of a surprise. This is not necessarily going to be a bombshell in terms of things that change the course of history. However, it means that everything is likely to not be on the fast- track. Everything is likely to be delayed.

So when you look at the calendar going forward, that likely means that this March trial date here in D.C. is likely to be delayed. What is not going to be delayed is the voting. The voting starts in Iowa on January 15th. Of course, former President Donald Trump is a commanding lead in the race and nothing that is going to happen in a courtroom or by a judge is likely to change that.

Going forward a week later, the New Hampshire primary. He has a bit more of a competition there.

And then a month later, the South Carolina primary.

So as this is all going, there are going to be oral arguments and there are going to be various legal things happening. But from the legal side of things, it's helped Trump's politics immensely.

ACOSTA: Yes.

ZELENY: Look to the end of the year, the end of the summer, the nomination is likely to be wrapped up before we learn anything actually substantively in a court of law.

ACOSTA: Yes. And Scott Jennings, I mean, I have to ask you the question about this, I mean, delays do work well for Donald Trump. Obviously, we've talked about that a million times. But as a Republican, Scott, what about the prospect that this election subversion case gets adjudicated? There's a conviction. And because of these delays, you get the conviction right before the Republican convention this summer and it throws that convention into chaos.

It reminds me of what Nikki Haley has been saying out on the campaign trail lately that Donald Trump is a candidate of chaos. This sounds like legal chaos and political chaos potentially for the Republican Party.

SCOTT JENNINGS, CNN SENIOR POLITICAL COMMENTATOR: Yes. I mean, I think, though, Republicans already knew that this was a possibility, whether a case came early or a case came late, whether a conviction came early or it came just before the convention, the possibility or maybe even the probability that Donald Trump could roll into the convention with a felony conviction has been hanging out there.

[15:20:04]

And as was noted earlier, it's not really impacted too much his standing with Republican voters, at least in Iowa. Maybe it's hurt him a little bit in New Hampshire where the electorate's a little different. But overall, I mean, he's sitting north of 60 percent nationally. And it's well known among Republican primary voters what his issues are. So I don't actually know that there would be that much chaos at the convention, to be honest with you, because I'd be surprised if the Republican Party took the nomination away from him because most of your Republican delegates and folks who would be at the convention are going to view a conviction, if one ever comes, as something that's illegitimate and should have never been brought in the first place.

So I wouldn't doubt that someone might try. But remember, Donald Trump is the titular head of the Republican Party. Most people that will be at the convention will be fans of Donald Trump. His campaign team has skillfully sort of orchestrated this primary process so far to put key processes and people in place to guard against. Some sort of chaos, as you called it, due to his legal issues. So they're well equipped to fight this out, even if this thing were to happen in late summer.

KEILAR: Scott, Jack Smith had asked the court to do something kind of out of the ordinary here, right? Not to say that it doesn't happen and not to say that we aren't in extraordinary times, but this would have been a big deal if they decided to proceed and expedite this. And I wonder what you think just about the perception of the court when it comes to Republican voters, supporters of Donald Trump, looking at how the court has decided that they're not going to get involved here and what the flip side might have been if they had?

JENNINGS: Yes, I think that Republicans will see this as a victory for Trump, and that's obviously how he's going to portray it. And so, therefore, his supporters will have viewed the Supreme Court to have done the "correct" thing here with air quotes around the word correct, because that's how they would see it.

What I actually think, Brianna, is going to be the big tell here is when they actually take this Colorado case and I think they're going to not uphold it. I think they're going to throw it out. That's when Republicans are really going to say, look at this, Supreme Court, doing an awesome job. And I assume Democrats are going to say terrible job (inaudible) ...

KEILAR: The Colorado case where the Supreme Court.

JENNINGS: ... (inaudible) ...

KEILAR: ... the Supreme Court has effectively kicked Donald Trump. They've stayed it, but effectively kicking Donald Trump off the ballot.

ACOSTA: Yes. And Jeff, I mean ...

JENNINGS: Yes, right. And obviously - yes, if they if take that up and punt it away, then that that'll be viewed by Republicans as a righteous decision, of course.

ACOSTA: Jeff, we're talking about this through the lens of Republican Party politics, what happens during the primaries, what happens at the convention. But if you're the Biden team, do you want this hanging out there like a cloud, like a Charlie Brown cloud over this election cycle right up until November 2024? I suspect that there are a lot of folks in the Biden camp who say that sounds just fine to us.

ZELENY: It's certainly better than talking about the high price of milk, and eggs, and gas and things, I think. But the - so much of this is ...

ACOSTA: I mean, it's only conviction, as Scott was saying a few moments ago.

ZELENY: Right, if that happens.

ACOSTA: They made - if that happens, if they brush that off at the convention, that's - but if you're a independent swing voter in the suburbs of Philadelphia or Detroit or any of those kind of battleground states and the Republican Party standard bearer, the nominee of the party has just been convicted. I mean, obviously, we have to go through the trial and everything, a lot can happen.

ZELENY: Or imagine if he's acquitted.

ACOSTA: Or if he's acquitted.

ZELENY: Does that make Democrats sort of more upset? I mean, there are going to be so many iterations of this chess game that we can play. But the reason it matters is the Biden campaign in the White House is trying to draw a contrast every moment of the day with Donald Trump. So I think it helps in that regard, drawing a contrast.

But again, so much of this is baked in. As Scott was saying, people - most Republicans know that it's a decent possibility that their nominee could be a convicted felon and he is overwhelmingly the leader in the primaries.

But no one has voted yet, so we do not know if this is going to change things on the margins or not. But what this means next year is that it is just a lot of legal discussions as opposed to immigration and other matters.

But that actually helps the - well, basically we're going to have two incumbents if he is the nominee and we're not sure how this is going to fall. I mean, perhaps enter the third party because the exhaustion factor with all of this will be huge.

KEILAR: All right. Jeff and Scott, thank you to both of you for the discussion.

And ahead, the widow of slain journalist Jamal Khashoggi granted political asylum here in the U.S. five years after her husband was brutally murdered. She's going to join us live after a quick break.

[15:25:00]

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[15:29:37] ACOSTA: After intense behind the scenes negotiations and several delays, the U.N. Security Council has passed a resolution calling for urgent steps to get "safe and unhindered humanitarian access throughout Gaza."

KEILAR: The U.S. did not vote in favor, but it did abstain, allowing the resolution to pass.

CNN's Jeremy Diamond is in Tel Aviv.

Jeremy, explain to us what happened here.

[15:30:02]