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Appeals Court: Trump Has No Presidential Immunity in Election Cases. Aired 10:30-11a ET

Aired February 06, 2024 - 10:30   ET

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

[10:30:00]

JOAN BISKUPIC, CNN SENIOR SUPREME COURT ANALYST: Special Counsel Jack Smith first went to the Supreme Court back in December, urging the justices to take it up before the D.C. Circuit. He made a pretty compelling case about the Supreme Court's assessment being necessary here. This is -- was the kind of dispute that brought us all to the apex of presidential powers and -- or the apex of whether a president is going to try to be above the law. And we now have a series of judges who said no, the president is not above the law in this kind of situation. And there just might be some interest among some of the justices to say, we need to have the last word here.

I think it could be close. They only need four votes, as Ellie just said, to grant the case, but there'll probably be enough momentum to say there's no reason to take it up now because, you know, we -- it's not like we have another case coming up like that right now. You know, let it go to trial. Let that proceed, but I would have to say, Sara and folks, I'm just a little bit split given the importance of the question overall and how Jack Smith himself had set it up originally.

The justices could take a pass here. There'll be a lot of incentive for them to take a pass given everything else that they are deciding right now especially in the Trump realm. But they -- it just takes four. It just takes four.

SARA SIDNER, CNN NEWS CENTRAL CO-ANCHOR: Joan Biskupic is split, ladies and gentlemen. We will be watching to see what happens.

JOHN BERMAN, CNN NEWS CENTRAL CO-ANCHOR: The question is, is she five-four or four-five here which may --

SIDNER: Yes. Correct, correct.

BERMAN: -- may make the difference there.

All right. Let's go back to our Paula Reid, who I do understand has heard now from the Special Counsel Jack Smith's office. And as Joan correctly points out, the Special Counsel, who at one point really wanted the Supreme Court to take this up, I imagine they may have a different view of that now, Paula.

PAULA REID, CNN SENIOR LEGAL AFFAIRS CORRESPONDENT: Yes, Joan makes such a good point. You know, when Joan Biskupic is split, you know, it's complicated. But Joan makes a great point that, you know, back a couple months ago, the special counsel thought it was imperative that the Supreme Court step in, resolve this question.

But that was as much about the constitutional question as it was about really timing. Like, that was why Jack Smith wanted to go right to the Supreme Court. Don't let the Trump team go through all of these steps, drag this out because that would raise the possibility that this might not go to trial before the November 2024 election. So, he was really going to the Supreme Court just to resolve the issue once and for all.

Now, it is likely that the Trump team will appeal this to the Supreme Court, not only to exercise their rights, but also to draw this out. But again, I've talked to sources close to the Trump team, and they know that this, this is not their strongest argument nor is it their strongest case. I mean, they knew that they were likely going to lose after the appellate arguments, and they would be surprised if the Supreme Court takes up this issue, especially in the same week that the justices are already hearing a different case on Trump's ballot eligibility. A much stronger argument for the former president, one that many legal experts expect that he will likely prevail on.

So, it's only be a surprise, and the special counsel's office right now they are declining to comment on any of this. But I think it -- I can say in a report that it would be a surprise to the Trump team if the Supreme Court agreed to also take up this question of immunity. I mean, we'll see what they do. We absolutely expect the Trump team will appeal, but I think it would be a surprise. And the appeals court has really set up a tight turnaround to send this whole case back down to the trial court where it could then proceed to a trial before the November 2024 election, which is, of course, what the special counsel's office has been advocating for.

SIDNER: This is a legal story but it is also a political story, obviously, a huge one. And I know you'll be watching all the details there.

Let's get to Laura Coates, our anchor and former federal prosecutor. I'm just curious, Laura, when you look at this decision, what stands out to you and what does it tell you about where all of the courts are and what is going to particularly happen in this particular case against Donald Trump?

LAURA COATES, CNN SENIOR AND CHIEF LEGAL ANALYST: Well, we'll take a step back and just look at the weight of this decision. We've been waiting for weeks after a very, very intriguing and compelling oral argument where it was very clear from the get go that these justices were completely skeptical of any argument that gave this enormous amount of power and a carte blanche, really, to a president of the United States.

Think of all the hypotheticals about whether you could order the SEAL Team 6 to assassinate an opponent -- a political opponent, whether you had this entire authority to completely undermine the checks and balances, and the questions about what the parameters of a presidential power would look like. What is in the scope of presidential functions and duties?

And they have rejected it outright. It was expected, frankly, among many constitutional scholars that there would not be this notion of wide and absolute presidential immunity. Now, having said that, there are, of course, going to be parameters in terms of things that are within the scope of one's employment. As the president of the United States, we do want to protect the ability of a president to act.

[10:35:00]

But in orders like this, in discussions that were had on that bench, in that courtroom, and even in this written opinion, Sara, it is very clear that this does not present the circumstances on which we are willing to let go of checks and balances.

Remember what immunity really means. It means that you don't have to do any -- you know, you can do no wrong. No one can hold you to account. And all you would have to do is to wait out the political process, maybe, of impeachment and they have rejected that as well to suggest, this idea that all I have to do and -- is to wait it out or have to be impeached and convicted first before anyone can act really was a farce. And this does not, well, pull any punches whatsoever. They are very clear eyed.

And for a Supreme Court to take up a case, they want to know there is a controversy. That there is some level of disagreement. They don't want to deal with issues of the first nature at first blush. They want to know there is some underlying reason why you need these nine Supreme Court justices to decide an issue. And so far, we have not seen that indication that they will.

And as my colleagues have pointed out, so astutely, the idea that this court, the Supreme Court, wants to weigh into a political discussion, you can just forget that. But remember, this isn't truly political, is it? This is, what are the powers and liberties, and the ability to hold to account a member of a different branch of government. That goes to the very core of our separation of powers. This is an unbelievable moment in American history, and this court has made clear that for -- as we all know it, in the theory of immunity, it does not apply absolutely to a president of the United States.

BERMAN: Thank you so much, Laura. Correctly noting, right now, this is a legal document and a legal matter, though with immense political implications because every poll out there that we take, while some have Donald Trump ahead right now, when they ask the question, would you be more or less likely to vote for Donald Trump for president if convicted --

SIDNER: If convicted.

BERMAN: -- of a crime, a conviction hurts him, and usually drops substantial amounts of points in polling. To that end, and I'm not going to ask our lawyers here. Our fantastic attorneys here for political opinions, but in terms of a jury pool, Elie Honig --

ELIE HONIG, CNN SENIOR LEGAL ANALYST, FORMER ASSISTANT U.S. ATTORNEY, SOUTHERN DISTRICT OF NEW YORK: Yes.

BERMAN: -- in Washington D.C., where, how likely is a conviction or where is a conviction on any of these cases most likely?

HONIG: It's all about the jury, Carol and I will tell you that. And if we look at just the data in Washington D.C., that is the single most unfavorable federal district for Donald Trump in the country if we go by 2020 election results, which I think are a useful proxy. In 2020, Donald Trump got just over five percent, I think it's 5.3 percent of the vote in D.C., meaning about 95 percent of D.C. residents voted against Donald Trump.

So, he's going to have a tough road in front of that jury. And I have to add this, he better get his act together behaviorwise in front of a jury, right? Look at two weeks ago when it went in front of the E. Jean Carroll jury, he's stomping out of the courtroom. He's muttering under his breath. The judge is condemning him in front of the jury. I mean, you try that in front of a criminal jury and the consequences are going to be much worse than a huge civil verdict.

But look, it's a tough jury pool for Donald Trump. No question about it. That said, there's no game playing here. I mean, if you're Jack Smith, where else are you going to charge this case? It has to be charged in January 6th --

SIDNER: Look --

HONIG: -- in D.C.

SIDNER: In D.C. Well, you bring up January 6th, I know why.

HONIG: Right.

SIDNER: Because that's where this happened.

HONIG: That's -- yes.

SIDNER: The people of D.C. were there. They live there. They watched this in horror. They -- they're -- there was a lot. I've been in the courts there, the federal courts.

HONIG: Yes.

SIDNER: Watching the cases against those who were involved in January 6th, I don't think they have lost a case --

HONIG: Yes. I don't believe that there's been an acquittal.

SIDNER: -- that has come before the court. I don't think there has been an acquittal. And so, obviously this is a political talking point you just gave to the Trump team because they are -- they have already brought this up.

HONIG: They had it themselves.

SIDNER: They have all --

HONIG: They didn't need it from me. But yes --

SIDNER: They already brought this up.

HONIG: Yes. Let me throw in one other wrinkle though that goes to Jack Smith's charges. Jack Smith has brought four charges, four federal charges in this case. Two of them are for obstruction, OK? The problem is there's now a real legal question over whether that obstruction statute applies to January 6th because a whole bunch of the rioters were charged with that.

SIDNER: Yes.

HONIG: And all the lower judges said, no, of course obstruction can apply to trying to get in the way of Congress. But the Supreme Court has taken that case, which suggests to me there's a good chance the Supreme Court says no, obstruction does not apply to January 6th, which would endanger two of Jack Smith's four charges, the two most serious ones, by the way.

BERMAN: Let me throw this out there, Caroline Polisi. So, there will be arguments before the Supreme Court this week on an election case having to do with Donald Trump. Do Trump's lawyers now, before the Supreme Court, try to say things that may or may not influence the immunity decision?

CAROLINE POLISI, FEDERAL AND WHITE-COLLAR CRIMINAL DEFENSE ATTORNEY: ?Yes, I mean, look, there -- there's -- it's three-dimensional chess, right?

BERMAN: Yes.

[10:40:00]

POLISI: And there are lots of moving parts here. I think, likely, the Trump lawyers are going to make the argument, look, the overall argument of did he engage in an insurrection? Did he participate in that, sort of, event? I don't think, ultimately, that is what the Supreme Court is going to make its decision on. I think they will just like -- you know, we've all been noting, they don't want to touch political issues, and even though it is a legal issue, it's also political.

My guess is they are going to make this decision on, sort of, procedural grounds either that he's not an officer for the purposes of Section 3 of the 14th Amendment, something along those grounds, or that Congress is the one that needs to implement any type of legislation having to do with this. But I think -- you know, just one point on the jury issue, you know, the -- in Donald Trump's last trial with a jury, which was the E. Jean Carroll case, one of his criminal defense attorneys, Susan Necheles, was there with his jury consultant, Josh Dubin.

So, they are -- there's a cottage industry around juries and jury consultants. They are going to put a lot of resources into picking a jury if it eventually gets to that point.

SIDNER: I want to ask about the jury because challenges are a big thing. That is, each attorney gets a chance to challenge a juror that they don't like. And in some of the cases, I felt like they got extra challenges because you know the players in this case, you have likely an opinion about the person in this case, and I watched that happen.

And I saw juries that were very, very -- even, there were people who were Republicans, there were people who had actually supported Donald Trump in some way in D.C. So, a lot of people will look at this and say, OK, it's over. But the jury is the jury. They have to look at the facts of the case, correct? Do you see challenges being an issue? Are they going to add to them?

HONIG: So, first things first, we believe in our juries as finders of fact, we entrust them to do this and we ought to assume that they can put aside do what they're told. Put aside your personal beliefs, your political beliefs, and decide this case only on what you hear in this courtroom.

Let's talk for a second about jury selection because it is very high stakes --

SIDNER: Yes.

HONIG: -- very tricky to do. It's like a mega-high stakes, very unpredictable game show, almost, where the lawyers are given very limited information about all the potential jurors. You know, a few things about them. You probably know a little more about them in this case than normal. But you have to then make a judgment, is this person going to be -- able to be -- really, you're thinking, is he going to be on my side?

SIDNER: Right.

HONIG: I mean, as a lawyer, let's be real here.

SIDNER: Right, right.

HONIG: The way it works is there's two reasons a potential juror can get thrown out of the pool. One is what we call for cause. If they're obviously biased. If they have a job that they -- if they're a doctor and they have to do rounds and they can't be missing the next six weeks for a trial. So, you get rid of all those people, and people who come in and say, I'm wildly biased. I love Donald Trump. I would never vote against him. I hate Donald Trump. I would, of course- --

SIDNER: And that happened in some of these cases, that happened.

HONIG: Yes, you're right. You get rid of those people.

SIDNER: Yes.

HONIG: Then you're left with your remaining pool. And then you get into what you were referring to, Sara, the strikes. They're called peremptory strikes and each side gets a set number. Usually, the defendant gets more than the prosecution. Typically, it starts at, in the federal system, 10 of those strikes for the defendant and six for the prosecution, but judges can give more usually to the defendant because they're the one with the constitutional interest. And then you just take turns. The judge goes, OK, prosecution, who are you striking? And we say, we'll strike number 48 defense. Defense, who are you striking? We're striking number 11 and 72, and you end up with your 12th.

BERMAN: This is what we're going to do.

SIDNER: OK, John.

BERMAN: We've all got this 57-page ruling in our hands right now. We are going to pour through this ruling line by line, page by page in the next three and a half minutes. Laura Coates is in Washington doing the same right now. After a quick break, we will come back and discuss this more.

Hey, if you have questions out there, you know, text us, tweet us. Tweet Laura Coates.

SIDNER: You're going to give your number? What's going on here?

BERMAN: Especially Laura Coates, tweet her and we'll give you answers right after the break.

SIDNER: We'll be right back.

(COMMERCIAL BREAK)

[10:45:00]

BERMAN: All right. The breaking news, a federal appeals court panel in Washington, D.C. has ruled that Donald Trump does not have immunity for crimes that he may have committed around January 6th. According to them, if it were up to them, that he would be allowed to go on trial in federal district court. The Supreme Court now has until February 12th to decide whether they want to weigh in here. We're not sure whether they will or not. If they don't, this goes back to the district court and a trial will happen in the federal, you know, election interference charges against Donald Trump.

We are getting new reaction from the Trump camp. Let's get right to Kristen Holmes for that. Kristen, what are you hearing?

KRISTEN HOLMES, CNN U.S. NATIONAL CORRESPONDENT: Yes, John, we finally got a statement here, and notably they do say that they are going to appeal an appeal quickly. This is the statement from Trump campaign spokesperson Steven Cheung. He says, if immunity is not granted to a president, every future president who leaves office will be immediately indicted by the opposing party. Without complete immunity, a president of the United States would not be able to properly function.

Deranged Jack Smith's prosecution of President Trump for his presidential official acts is unconstitutional under the doctrine of presidential immunity and the separation of powers. Prosecuting a president for official acts violates the constitution and threatens the bedrock of our republic. President Trump respectfully disagrees with the D.C. Circuit's decision, and we'll appeal it in order to safeguard the presidency and the constitution.

Again, there seems to be arguing that presidents, in general, are above the law. That is something that obviously these judges did not agree with. Now as you noted, Supreme Court, they will be able to appeal this before February 12th to the Supreme Court. Unclear whether or not they will take this up. As you know, they are already hearing arguments in the 14th Amendment case this Thursday.

[10:50:00]

But this argument of immunity has been a key part of Donald Trump's political strategy. He has really doubled down on this idea that presidents should really be able to get away with whatever it is that they do while they are in office. Obviously, in this case, he was talking about what happened on January 6th and around the election meddling, saying that he was doing that in his official capacity. But clearly, these judges disagreed with that. Donald Trump saying that they will in fact appeal.

SIDNER: Yes, they also said it was not his official capacity, and that's one of the arguments being made at this point in time.

BERMAN: Kristen Holmes, thank you very much.

SIDNER: Let's get straight to Laura Coates, who is, like everyone at this desk, pouring over this -- how many pages, John?

BERMAN: 57.

SIDNER: 57. Well, he's on it. 57-page decision by the appeals court in the District of Columbia. What stands out to you as you read through it? All of these arguments, as you just heard, Donald Trump's team is going to make in the appeal have been discussed in this very document.

COATES: They have been. Absolute immunity? Rejected. A president does not enjoy absolute immunity. There are checks and balances for behavior that was criminal or alleged criminal during the term of office. That's a very huge consideration. There's another part. We have lived through impeachments, and I do mean the plural impeachments now, with the former president. The last of which involved some of the same underlying facts, which led up to January 6th and on January 6th.

The legal team tried to make the claim that, hold on, we've got double jeopardy here. We've already been through a trial as it relates to Donald Trump and the conduct occurring on or before and on the actual day of January 6th. And for that reason, you can't try us again. That's the principle.

This court rejected that. They said, first of all, an impeachment is not criminal. It is a political vehicle. It has always been considered as such, and it will remain as such. Secondly, even if we were to assume this actually is a criminal proceeding, which it is not, at the impeachment level, there's a thing called the Blockburger test. That's a fancy way of saying, we're going to compare and contrast the crime that you were alleged to have committed in the criminal court and one in the other context.

Are the elements that you're required to prove the case the same? Are there different things we have to prove? If there are different things or additional charges or additional elements, they're not the same case. Therefore, even if an impeachment were criminal, which it is not, they are comparatively different and there is not a double jeopardy attachment. This undermines fatally any argument that suggests that, hold on, would have you doing the political context will essentially absolve you and immunize you in the criminal courts as well.

That's a very important notion in a world where we now live in, Sara, where we've got multiple impeachments over the course of years. But fundamentally, this is a huge decision. The timeline they have given him to appeal, February 12th, a very quick turnaround.

If the Supreme Court opts not to take up this case. If he ultimately chooses not to appeal the case, it goes right back to the judge who has made it very clear she wants this case to go smoothly and quickly, and has set a very aggressive calendar to do such that is in line, frankly, with other cases involving January 6th.

Fundamentally, Jack Smith, only charged four different counts against his former president. It was streamlined intentionally. Will it make a difference now, the Supreme Court may opt to weigh in? We'll have to see.

BERMAN: I want to dig in just for about a minute left that we have in this hour about that statement that the Trump team just made there. They said that Jack Smith's prosecution of President Trump for his presidential official acts is unconstitutional. The weakness of that argument, as decided now by a series of state and federal courts, is they keep on saying that this was not a presidential or official act --

POLISI: Yes.

BERMAN: -- period.

POLISI: Yes. So, the Trump legal team's argument really grew out of this civil jurisprudence in the Supreme Court decision 40 years ago which declared civil immunity. And they made all, sort of -- for presidents, they made these arguments like they didn't want to have a chilling effect on presidents, sort of, you know, doing -- a lot of arguments you hear in the context of presidential, you know, in terms of making decisions that may be those tough decisions.

Also, they argued that it would stop a slew of litigation. You know, we always hear about this like this wave of civil litigation that it really wouldn't be a problem in the criminal context because you need a prosecutor to indict one case, right? We have double jeopardy in this country, and there can only be really one criminal case stemming from a specific action. And you need a grand jury to indict.

So, it's not like there would be this issue. Among all a lot of other reasons, those were two fatal flaws in the legal team's argument. They want them to have it both ways. They are trying to, sort of, gloss over that difference. And the Supreme Court said, stop right there. This is not the same. This is not the same context and we're ruling differently in this context.

[10:55:00]

SIDNER: Wow. Caroline Polisi.

Hello, Elie Honig.

HONIG: Hi. I'm still here.

SIDNER: We've got lots more to talk about. Of course, we've got 57 pages to go through and the response from Donald Trump, sort of, going through that. We will be right back and we will have a lot more information for you coming back after the break.

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ANNOUNCER: This is CNN breaking news.

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