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Defense Secretary Lloyd Austin Underwent Prostate Cancer Treatment; Pentagon: There Were "Shortfalls" In Reporting Austin's Hospitalization; Fed Judges Hear Critical Arguments On Presidential Immunity. Aired 3-3:30p ET

Aired January 09, 2024 - 15:00   ET

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

[15:00:00]

OREN LIEBERMANN, CNN PENTAGON CORRESPONDENT: The other, as you point out, was on the notification problems here and the fact that President Joe Biden didn't know his defense secretary was in the hospital.

On the medical side, we talked about all the medical procedures here, the diagnosis of prostate cancer in early December, the minimally invasive procedure where he was under general anesthesia. We learned and we have known that neither Deputy Secretary of Defense Kath Hicks nor President Joe Biden were notified that he was overnight in the hospital from December 22nd to 23rd. We now know he was under general anesthesia.

And then we learn more about a week later on January 1st, the discomfort he was feeling, the source of that discomfort, a urinary tract infection and more. So we've learned on that part of it. In terms of his returning to duty, Pentagon Press Secretary Maj. Gen. Pat Ryder didn't detail whether he's on medication, but he said the decision to return and resume his duties, even as he remains in the hospital, was done in full consultation with his doctors, with the medical staff there.

And there was also a question of why this was called an elective medical procedure. I won't speculate there. Certainly Dr. Reiner would have a better sense of why it's called an elective medical procedure, if that was appropriate or if some aspect of this was elective, because the Pentagon didn't have an answer on that question. And then there were all the questions, Brianna, as you pointed out on notification and this is where the process broke down and failed.

Essentially, Ryder kept kicking to this 30-day review. My colleague, Natasha Bertrand, asked, the review starts looking at the timeline on January 1st, why doesn't it start at December 22nd when he first went to the hospital, why isn't that being looked at.

Ryder's answer to that was that the lessons learned from January 1st on will sort of be applicable in reverse. They will still apply on notification procedures. It's also unclear why, when his chief of staff and his senior military advisor knew on January 2nd, within 24 hours, why didn't one of them pass this on or know how to pass it on. To this point, the Pentagon has said that his chief of staff had the flu and for some reason, therefore, wasn't able to make notification or pass on the responsibility of notifying the president and others.

So there are still serious questions there about this notification process. Also worth pointing out that the person ordering the review, Chief of Staff, Kelly Magsamen, is the person that Ryder said yesterday had the responsibility to do it. So the person at fault here initiated the review. We'll, of course, have to see what comes as a result of this review. He also said the secretary has no intention of resigning. The chief of staff has no intention of resigning nor will President Joe Biden ask the Defense Secretary to resign.

In terms of travel, in terms of meetings, in terms of upcoming events, that, Ryder says, will be taken as they come, as they look at his schedule, and as they see his recovery. The statement from Walter Reed says his recovery is going well, but it is a slow process. There is a good prognosis because the prostate cancer itself was diagnosed early.

So as much as we have the answers on the medical side of this, we now wait to learn more about the notification side and the failures to notify the president and other senior administration officials.

BORIS SANCHEZ, CNN HOST: Oren, please stand by. I want to go to Lt. Gen. Mark Hertling. He's a CNN Military Analyst. He's been waiting patiently and listening to this Pentagon briefing.

General, we understand that you have a personal relationship with the Secretary of Defense. I believe that you described him to one of our colleagues as a friend. First, I want to get your reaction to the news that he dealt with prostate cancer, and then also get your perspective on the issue of transparency and why perhaps the Pentagon - he perhaps was not more forthcoming with the infection after the elective procedure.

LT. GEN. MARK HERTLING (RET.), CNN MILITARY ANALYST: Sure, Boris, and thanks. And yes, I do have to state that we do have a - Secretary Austin and I do have a personal relationship. We're West Point classmates. He was my commander in Iraq. He is a good friend and I think very highly of him.

Having said that, I think some of the things that were pointed out are all contributing factors to what happened, the lack of transparency. The first thing is, you need to know that every general officer and senior military official goes through a yearly physical by mandate. So every year, you're updated on your PSAs and all other factors of your health.

The military does that to make sure they're not embarrassed by someone either dying or being injured on active duty. That's embarrassing. So Secretary Austin is used to doing that, number one. Number two, there's the privacy requirements. As Dr. Reinhardt (ph) mentioned before, this is a tough kind of injury or illness to open up about for most males. It was very good that Secretary Austin got these tests on a yearly basis and something evidently changed. And he said, hey, let's take care of it, which brings me to my third point.

[15:05:00] Secretary Austin is - I'll put it in the military psyche approach - when a military officer is injured or hurt, the first reaction is, hey, ruck up, continue on, drive on. That's kind of the military approach to all injuries and illnesses, even when you're sick.

The fourth thing is, that contributes to this, is Austin - Secretary Austin's personality. I know him well. He's very much of an introvert. He's very much of a private person, almost to the nth degree. He keeps his cards close to his vest, and he works his butt off.

So I think that contributed as well. He thought he could go in and out of Walter Reed on a day during his leave period, get this operation that the doctors were recommending, probably a non-invasive surgery, and get back to work immediately. That was probably his plan until he started suffering a couple of days later.

Does any of that excuse the action of him not notifying or his staff not notifying his bosses? Absolutely not. But the key is, this press conference today, giving all the special details of his illness, that's not something that usually happens. So I'm sure to try and tamp down some of the lack of transparency comments or are you going to resign comments.

Secretary Austin had to be asked and gave permission to let it all loose, tell everybody what happened. So they have a better detail. The last thing I'll point out and I'm sorry for going on so long, is the review process that's been talked about that Oren just mentioned.

The military is famous for their after action reviews, where they say what happened, why did it happen, what do we do to make a difference and change it for the better, who was responsible. And it's sort of a scab picking, if you will, of things that go wrong.

I know Kelly Magsamen, too. Secretary Austin's chief of staff. She will conduct a good review, and she will take responsibility for anything that went wrong, too, as the Secretary has already done.

BRIANNA KEILAR, CNN HOST: Yes. And to your point, listen, he's very private, clearly someone who schedules their prostatectomy, the Friday before Christmas Monday does not want that to be the topic of the Pentagon briefing. Of course, this then turned into complications.

And Dr. Reiner, back to you on that, because I think people look at these complications and they say, oh, he was in the hospital for many, many days. However, he apparently and we were hearing questions about this during the briefing, did not lose consciousness during that time. He actually had a tube put in through his nose going into his stomach. But it seems like it's actually not unusual for a nasogastric tube to be placed without general anesthesia. It's just sort of a numbing spray, is that correct?

JONATHAN REINER, CNN MEDICAL ANALYST: Well, having had one at some point in my life, I'll tell you that it's not a pleasant experience and one that I hope never to repeat. And it would have been placed for Secretary Austin because his intestines were probably dysfunctional and probably distended and it's a way to decompress the intestinal circuit when it's not working.

So we learned some interesting things. So Secretary Austin has what's described as a minimally invasive prostatectomy, Dr. Reiner. Dr. Reiner. Thank you for the time. Dr. Reiner. Thank you for the time. I will say that Secretary Austin had what's described as a minimally invasive prostatectomy, which was probably done via laparoscopic surgery.

So I wouldn't say necessarily that it's minimally invasive, it's less invasive. So instead of opening the abdomen with one or the pelvis with a large incision, small ports are made, small sort of stab incisions are made, and a robot - robot arms are basically inserted into these ports and operate using videoscopic assistance.

It's really elegant surgery. It shortens the recovery for men undergoing this procedure and it allows people to go home sooner. Not uncommon for people to spend the night. That procedure would have been done with general anesthesia with the patient unconscious.

It sounds like his complication really was an abdominal or pelvic abscess. The briefer mentioned that he had to have the "fluid drained." So it sounds like he had an abscess, which led to an infection, which sounds like led to sepsis requiring an ICU stay, which almost certainly also required antibiotics.

We've been told that he was in a tremendous amount of pain that would have come along with painkillers, including narcotics. What I - what I'll say in general is - since I'm wearing a white coat - is it sounds like General Austin - Secretary Austin is going to make a complete recovery, not just from the complications, but in the long-term from his cancer, and that's the best news.

[15:10:05]

And I think that's on a personal - from a personal standpoint, it's important to stress that. But I also will say that anyone who's sick enough to be admitted to an intensive care unit should probably not be making national defense recommendations to the president. And it - in - as a physician who has taken care of high profile people being admitted to hospitals, I would say that it's - it would be inconceivable if he were sick from an infection requiring antibiotics, particularly in the early days of his readmission to Walter Reed, that he would be in a proper position to make sensitive recommendations throughout his command structure.

SANCHEZ: That is a really fascinating point, Dr. Reiner.

I quickly want to pivot to the White House. CNN's MJ Lee is there.

MJ, how is this being received in the Oval Office?

MJ LEE, CNN SENIOR WHITE HOUSE CORRESPONDENT: Well, first and foremost, Boris, White House officials have consistently said that their number one concern here is Secretary Austin's well-being and his health. So we certainly expect that White House officials, including at a White House briefing that is set to begin any moment now to emphasize that point and wish him speedy and successful recovery as he continues his treatment.

But what is clear is that this whole issue has prompted this government-wide review of what should happen in this kind of situation. And all of this had created a lot of confusion even inside the White House with senior most national security advisors, including the senior most person at the White House here, of course, President Biden, having been in the dark about the fact that Secretary Austin had been hospitalized for days.

And the discussion that was just being had about the ability for somebody in his position when he's going through these kinds of health issues, are they sort of capable of advising the president on sensitive matters. Just to point you to our earlier reporting that I think really underscores how unusual, this situation was.

Just as an example, on New Year's Day, this was the day that Secretary Austin was hospitalized, he participated, as CNN reported a few days ago, in a meeting with the President and other National Security officials in the Biden administration to discuss, among other things, the escalating situation in the Red Sea. So these are very sensitive national security matters that we're talking about that the secretary presumably would have waited on, on the day that he was hospitalized.

Now, as for that review that we heard mentioned at the Pentagon press briefing, this is a government-wide review that White House Chief of Staff, Jeff Zients, actually circulated a memo about to all of the different cabinet secretaries and all of the agencies. They now have just a matter of days to submit to him the protocols that they would - yes, each of the agencies would follow when there is a delegation of authority situation that comes up.

And they make clear, in a situation like this, when a cabinet secretary is hospitalized, when they travel to a place, for example, where there's no communication, that these protocols need to be followed. I do think the other thing we will hear emphasized is something we've heard before from the White House in recent days that the president does continue to have full confidence in Secretary Austin.

KEILAR: Because it's not just a hypothetical here, MJ, right?

SANCHEZ: Yes.

KEILAR: This is on the evening of January 4th, Biden found out what was going on, but it was earlier that day that there had been a strike in Baghdad on a militant leader responding to strikes on U.S. assets in the region.

LEE: That's right. I mean, you think about the incredibly sensitive, highly volatile issues that this administration and this White House has been contending with particularly over the past few weeks, with the situation being so volatile, particularly in the Middle East.

This is again what I was referring to before that this is a period in time when the administration and top National Security officials in the administration were contending with so many different issues that were highly sensitive. And again, just that illustration I gave before, that on a day when he was actually hospitalized because of complications from that initial procedure, the secretary of defense was in a position participating in a meeting with the president.

And during that time, the President had no idea that all of this was going on. So, again, I think we are going to hear a lot of emphasis on wishing the secretary well, wishing him a speedy recovery.

[15:15:01]

But this review process is going to be one that is taken very seriously by this White House and by this administration.

KEILAR: That certainly will be. Everyone, thank you so much. We do appreciate it.

And ahead, former President Trump's legal fate is at stake today. The former president's lawyers arguing he can't be prosecuted for actions after the 2020 election. Trump choosing to skip the campaign trail to be in the courtroom, which just days until the Iowa caucuses.

SANCHEZ: Plus, Boeing facing more questions about the safety of some of its 737 MAX 9 planes. United Airlines now says it's found loose bolts on their jets. We're going to bring you the latest on the Alaska Airlines' plane investigation. Remember, a chunk of one of their planes ripped off in air. The details in just moments.

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[15:20:03]

KEILAR: Former president, Donald Trump, and Special Counsel Jack Smith were both in a federal courtroom today during these crucial oral arguments about presidential immunity and its limits or lack thereof, which is a core issue for the federal election subversion case against Trump, whether acts committed by a president can be criminal and whether they can be prosecuted.

SANCHEZ: Today, a three-judge panel heard from lawyers on both sides and over the course of an hour, they batted around various thought exercises, some hypotheticals about whether tweets qualify as official presidential acts or whether ordering a hit on your political rival using SEAL Team 6 could be prosecuted. Listen to this.

(BEGIN VIDEO CLIP)

JUDGE FLORENCE PAN, U.S. COURT OF APPEALS, D.C. CIRCUIT: Could a president order SEAL Team 6 to assassinate a political rival? That is an official act - an order to SEAL Team 6.

D. JOHN SAUER, ATTORNEY FOR FORMER PRESIDENT DONALD TRUMP: He would have to be, and would speedily be, impeached and convicted before the criminal prosecution.

PAN: But if he weren't, there would be no criminal prosecution, no criminal liability for that? SAUER: What the founders were concerned about was not ...

PAN: I asked you a yes or no question. Could a president who ordered SEAL Team 6 to assassinate a political rival who was not impeached, would he be subject to criminal prosecution?

SAUER: If he were impeached and convicted first.

PAN: So your answer is no?

SAUER: My answer is qualified yes.

(END VIDEO CLIP)

SANCHEZ: We're joined by CNN Legal Analyst, Norm Eisen, and Republican strategist, Doug Heye.

Norm, really some fascinating hypotheticals. Conversely, the Trump lawyers had some hypotheticals of their own, making the case that if Trump were prosecuted, then it would open the door for other presidents to also be prosecuted. They specifically mentioned Barack Obama and George W. Bush for incidents that happened during their presidencies. Is that a legitimate argument?

NORM EISEN, CNN LEGAL ANALYST: It's a legitimate concern, Boris, but it's not a legitimate argument in this context. They even made the argument about President Biden being prosecuted because of stuff that's going on, on the border now. Took me back to law school when every day, all day long, we considered these hypotheticals.

Here's what's wrong with the Trump position. There is no absolute immunity for presidents for precisely that reason we heard in the sound clip. You can't have presidents going out and ordering assassinations and not being held accountable. Why is it, then, that these issues with Bush or Obama or Biden are not real issues? Because we have checks and balances, matters never in American history have reached that impasse.

So it's a genuine concern, but it's not going to change what this panel is going to do. Trump is very clearly behind the eight ball with this panel.

KEILAR: His legal process. It isn't so much a legal process, Doug, as it is a political process for him. And to that point, he didn't have to be in court today, but there he was, scribbling furiously, taking notes at some points. What did you think about that choice?

DOUG HEYE, CNN POLITICAL COMMENTATOR: Donald Trump understands the power of images. And whether it was today or the previous time he was in front of a courthouse arguing his case, that's the campaign trail. Whether Donald Trump is in Iowa, New Hampshire, or a Washington, D.C. courthouse, he is on the campaign trail. And he knows all eyes are could be - are going to be on him.

But if you look at the polling where we see things are tightening up a little bit, especially for Nikki Haley in New Hampshire, I think this is an opportunity to make that chaos argument. To say, actually, Donald Trump's not going to be in. And then lead off with all those key swing states that we're going to see: Pennsylvania, North Carolina, Arizona, Nevada and so forth. And that we need Republicans, somebody laser-focused on beating Joe Biden and Donald Trump can't do it because of the chaos that constantly surrounds him. It's a winning argument to possibly make in these closing days in Iowa and New Hampshire.

EISEN: And interestingly, I mean, I usually do the law and Doug does the politics, so we're switching a little today. But interestingly, I actually wrote a guest essay in the Times about this last week. One consistent through line in the polling all year long backs up what Doug says, which is, if you ask, even in these very close polls, voters, what if Donald Trump is convicted, you see big swings.

That bombshell New York Times-Siena poll, which had Trump ahead in all of the swing states, a 14-point turnaround. Trump goes from five points up to nine points down if convicted. That's why I think Donald Trump was in court today. This is for all the marbles.

SANCHEZ: Doug, I quickly want to dip into the question of New Hampshire, specifically because CNN has new polling conducted by the University of New Hampshire that showed Nikki Haley really getting closer to Donald Trump. It's now in the single digits, his lead. Notably, there are a lot of voters that say they haven't made a decision. Some 45 percent of those polled haven't made a decision.

[15:25:00]

Does that give you hope as a Republican who isn't really warm to President Trump?

HEYE: It does. It tells me that this is possible. It's one of the questions we had when Donald Trump first went in. And part of it is because we've seen his candidates or his opponents haven't really campaigned hard against him. When Donald Trump has been indicted, they've reinforced his messaging, which has held Donald Trump high in the polls.

But there is still skepticism within the Republican Party. It's not writ large, but it's there and there's an opportunity, especially for Nikki Haley. As you see, DeSantis is far behind in those polls. Chris Christie sort of is in a place where he can't justify his own existence much longer with his numbers. Vivek Ramaswamy doesn't exist, essentially, in the primary at this point.

It's Trump versus Haley, it looks like, at this point. Trump is still the alpha dog, but the opportunity is there.

KEILAR: Yes, we'll be watching for that. It's a really interesting development.

Doug, Norm, thank you both for joining us for these thought exercises. We appreciate it.

And today, Boeing holding an all-hand safety meeting just days after an in-flight blowout led to the grounding of dozens of 737 MAX 9 jets. We'll have the latest on this investigation coming up.

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