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Hearing Resumes On Motion To Disqualify Fulton Co. D.A. Willis; Russian Prison Service: Putin Critic Alexey Navalny Dead At 47. Aired 9-9:30a ET

Aired February 16, 2024 - 09:00   ET

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

[09:00:00]

LAURA COATES, CNN ANCHOR AND CHIEF LEGAL ANALYST: -- and that chaos you described was a roomful of lawyers, there were lawyers. But for one witness on the stand, who should be very well versed in what it means to have decorum in the courtroom, but this tells you just how much emotions were running and what is at stake in this issue. And he did try to pull back on a number of things, warning, talking to them about trying to ensure that they had their proper and professional decorum here.

But remember what's at stake here? These litigants who are trying to disqualify her, they are trying to take you inside of the bedroom of the DA. She wants you to remain inside of the courtroom of Fulton County. Why? Because in order to disqualify her, it's not about her romantic interludes or lack thereof, it's not about necessarily exclusively whether they had a relationship, they admit to that. It is about whether that relationship gave a personal financial benefit to the DA that must be proven.

And here's another element to it, John, it had to actually undermine the ability of the defendants to have a fair trial. There's a lot of salacious information they want to extract from her, perhaps, inquiring minds, as they say, want to know. But the judge as the ultimate enquirer, wants to know, was there a financial benefit you can prove?

And on that front, there was testimony that came in yesterday from Nathan Wade and Fani Willis about having multiple sources of income? If I were to ask anyone in the audience today listening --

JOHN BERMAN, CNN ANCHOR: Laura, I'm going to jump in. Judge Scott McAfee is speaking out. Let's listen in to the judge.

COATES: Oh, here we go.

JUDGE SCOTT MCAFEE, FULTON COUNTY SUPERIOR COURT: Thank you all. Please be seated.

All right, we are back on the record with 23 SEC 18947. As with yesterday, if we could have counsel, just briefly introduce themselves make sure we've got the waivers on the record for today starting with state.

ANNA GREEN CROSS, ATTORNEY FOR FULTON COUNTY DA'S OFFICE: Good morning, your honor. I'm Anna Green Cross with the state.

UNIDENTIFIED MALE: Good morning, your honor. (Inaudible) state.

STEVE SADOW, LEAD COUNSEL FOR DONALD TRUMP: Good morning, your honor. Steve Sadow (inaudible) to President Trump and (inaudible).

UNIDENTIFIED MALE: (Inaudible).

MCAFEE: Mr. Durham joining us via Zoom again.

JACK BENOIT (ph): Good morning, your honor. This is Jack Benoit (ph). On behalf of Mark Meadows, he waves his presence.

MCAFEE: Thank you.

UNIDENTIFIED MALE: (Inaudible). She waves her presence.

MIKE SMITH (ph): Your honor, I'm Mike Smith (ph) (inaudible).

MCAFEE: I'm sorry. I didn't hear that at all.

UNIDENTIFIED MALE: With local council Jonesboro to my right.

MCAFEE: OK.

RICHARD RICE (ph): Richard Price (inaudible). He waves his presence.

UNIDENTIFIED MALE: Your honor, he waves his attendance of the hearing.

MCAFEE: I think we're now to Mr. Roman.

ASHLEIGH MERCHANT, DEFENSE ATTORNEY FOR MIKE ROMAN: Good morning, judge. Ashleigh Merchant for Mr. Roman, he waves his presence.

UNIDENTIFIED MALE: (Inaudible) for Mr. Shafer in his presence.

MCAFEE: All right, and then Mr. Floyd. All right, not seeing Mr. Floyd present today or anyone on behalf of his counsel. He received notice that today would resume and so I will make a finding that he's decided not to attend today's round two.

All right, anything we need to take up before resuming? We have someone from the gallery.

UNIDENTIFIED FEMALE: (Inaudible).

MCAFEE: OK. And Mr. Floyd has decided what exactly?

UNIDENTIFIED FEMALE: (Inaudible).

MCAFEE: Ms. Cross.

CROSS: Yes. It sounds like it's a deliberate choice for Mr. Morrison not to be here this morning and attendant was certainly here yesterday, if he joins later. Otherwise, I think we can call that a voluntary different (ph).

MCAFEE: OK. I agree. And I haven't heard anything else from Mr. Morrison or any other counsel. Is there anything we need to take up before resuming testimony here? Let me start with the state.

CROSS: I'm sorry. Thank you, your honor. Yesterday, this state had asked that Ms. Uribe her subpoena be held in case we needed to be called and let her attorney know last night (inaudible) I don't tend to recall her and as far as the state is concerned, and if she'd already been released from the other side, so there was no reason for her making mistakes.

MCAFEE: All right, Ms. Merchant. Can we excuse Ms. Uribe?

MERCHANT: I talked to her attorney last night and I said we had a different conversation. So I think he's still on standby (inaudible).

MCAFEE: So your position has changed since yesterday?

MERCHANT: Yes. Well, based on the state representation that they may have rebuttal evidence but they didn't give us that so I don't know what that is so in rebuttal -- if they present something in rebuttal that I need to call her to talk about and (inaudible).

[09:05:08]

MCAFEE: All right, well, addresses it comes up. What else? Anything else Ms. Cross?

CROSS: Not from the state, your honor.

MCAFEE: OK. Ms. Merchant?

MERCHANT: Just -- I know that we're still in the middle of Ms. Wallace (ph). But we need to address some of the things that were said yesterday or universal for rally privilege, things like that. Do you want to do that now? Or would you rather do that before this rally?

MCAFEE: When you say address them, what do you mean?

MERCHANT: Well, there's a couple of different issues, but we've got the privilege issue in one of them. But I also -- so what I did was I drafted all my questions, and I thought I could give those to the court opposing counsel (inaudible), so we didn't have to worry about the privilege stuff. There's also -- there were some allegations, we -- I had a transcript made of the proceeding yesterday.

Some specific allegations that I think I should have, not to name a few, specifically that I had egregiously misrepresented the things that I had said were patently false, and that all of that information came from external bodies, people, Ms. Cross, I spoke with Mr. Tripper (ph) on the phone, talk to him in the car remote here on speakerphone, Mr. Merchant and I known. And he said that he didn't tell Mr. Bradley, any of that information, doesn't know where Mr. Bradley got it from. Mr. Bradley says that he did so, you know.

MCAFEE: If we -- if there's any clearing of the air that needs to happen. And if we need to get to that, I think the right time would be once we've actually seen all the evidence that comes out, so.

MERCHANT: Right. Thank you. I just want to the -- let the court know. Thank you.

MCAFEE: And in terms of the privilege issue, if you're planning to recall, Mr. Bradley, and you've actually typed out some specific questions, and yes, I think that would be helpful and might allow things to proceed a little more efficiently through his testimony. So to the extent you've got those typed down or willing to provide those to council for Mr. Bradley and the state that would -- I encourage you to do that. And when we -- before we call him, we can get into that as well.

MERCHANT: OK, great. Thank you. And I have a copy for the court. I have copy for -- I have one copy for Mr. Evans. I know Mr. Bradley was objecting his privilege yesterday. But I think it's actually Mr. Evans that's needs to do it.

MCAFEE: Was Mr. Evans is here? OK. All right. Anything else from any council?

CROSS: About the rule, make it's done.

MCAFEE: The rule is still in place. All right, nothing -- anything else if we could bring back in Ms. Willis.

CROSS: Actually, your honor, the state has no further questions for Ms. Willis, so.

MCAFEE: All right. OK, Ms. Merchant, next witness.

UNIDENTIFIED MALE: I think we're about to hit the privilege issue.

MERCHANT: We are about to --

MCAFEE: Yes. We are. OK. Then do you need a, counsel need at the moment to take a look at their questions?

CROSS: Yes.

MERCHANT: So I've got a copy. Oh, yes, Mr. Evans.

MCAFEE: And then do we have Mr. Bradley somewhere in the whereabouts nearby?

CROSS: I informed him that he's still under (inaudible).

MCAFEE: Well, him and his client?

UNIDENTIFIED MALE: Yes. Well, and also, with Mr. Bradley, he's actually not here today. He's --

MCAFEE: We need you to notify yourself for the record, sir.

UNIDENTIFIED MALE: I'm (inaudible). He's not here to at this moment. He has doctor's appointment that he's currently in as we speak. And it was -- the patient is going to wait here as well. I'd love to give it in front of you (inaudible).

CROSS: Do you have a copy Ms. Merchant?

MERCHANT: I just got Mr. Evans.

MCAFEE: Do you have a time estimate of when he's supposed to be here? Where is the doctor in relation to here?

UNIDENTIFIED MALE: Yes. At the very earliest it could be. He could be cleared about (inaudible).

MCAFEE: All right, he's currently driving here as we speak.

UNIDENTIFIED MALE: He's at the actual doctor office as we speak.

MCAFEE: OK. And --

UNIDENTIFIED MALE: And I think the counsel made a point of that last night that he will not be here to go out there (inaudible).

MCAFEE: All right.

MERCHANT: I wasn't told 10:00 or 10:30 but.

MCAFEE: Sure. Ms. Merchant other than Mr. Bradley, did you have any other witnesses?

MERCHANT: Not that I can probably force him out.

SADOW: But you think we can take up some privilege --

MCAFEE: Sure. I think we can use this time to do that. So wanting to take a moment to look at the questions and then let me know when you're ready to proceed.

SADOW: OK. My partner has there's had to be a question, I understood yesterday. I don't want another --

BERMAN: A surprising development at the outset this Friday morning is hearing in Fulton County, Georgia. Fani Willis, the district attorney who was on the stand testifying yesterday and it was explosive. We all thought she was going to get back on that stand again this morning. But the DA's office said they have no more questions for her. And the defense attorneys who had been going after her all day yesterday said they too were done with her.

So what we saw from Fani Willis yesterday, appears to have been it. Now, they're talking about who they will call next. One of the issues is some of the witnesses they want to call next aren't there, I think because everyone was expecting there to be more time spent with Fani Willis this morning. At this point, they're having discussions, procedural discussions, discussions about privilege. But let's take a moment to reflect on the decision not to put Fani Willis back on the stand, Elie, give me a reason why each side would be done.

[09:10:27]

ELIE HONIG, CNN SENIOR LEGAL ANALYST: OK. So here's how I see the strategy both ways. The DA's office, easy calculation. If you can end her testimony and put a bow on this, you're happy, you don't want to bring her back, all that can happen is that if she comes back, it's unpredictable. You don't want the DA on the stand. If you have an opportunity to end this, you end this.

Now from the other side, from the defendants point of view, I think they've recognized properly that she's not going to suddenly give it up. She's not going to admit she ordered the code red. She's not going to order she's done any of the things that she has been alleged to do, the way the defendants are going to have to prove their case is with other evidence with documents relating to bank records or phone calls with other witnesses. That's the only way they're really going to undercut her, they're not going to get her to just reverse herself on the stand.

BERMAN: Karen?

KAREN FRIEDMAN AGNIFILO, CNN LEGAL ANALYST: I mean, you're sort of seeing how the sausage is made, right? There's a lot of waiting. There's a lot of, oh, the witness didn't show up. That's kind of the way normal court actually is not caught on T.V., right. And so their calculation, though, I think, is a big mistake on the part of the defense to not clean up yesterday's testimony. The prosecutor was smart.

I agree with Elie not to cross examine her, right, because that's what they could have done is cross examined Fani Willis is really it's a cross examination of their own witness. But the defense should have focused the questions on the finances today. Because as Elie said, you can easily ordered documents that they either are or they aren't a certain way, or they either say or they don't say a certain thing.

And they just haven't met their burden of disqualification. So if I were on the defense side, I would want to focus my questioning away from the relationship and more just on how does it work in the office? How do you hire someone who approves? How do you decide how much he gets paid versus other people get paid? What were those conversations like? How did you determine $250 an hour? All of the things that would potentially go to disqualification and they didn't do it. And so that to me is curious.

BERMAN: Were they scared off for Fani Willis? Did they think they weren't getting where they want it to get to with her yesterday?

MICHAEL MOORE, CNN LEGAL ANALYST: I don't think so I think the state so is, is let's stop the bleeding. And so they didn't ask any questions today. And then that really shuts off the right to sort of redirect because there's nothing to redirect from. There's no questions from the defense or from the state in this case. And so I think at that point, I do wish they'd cleaned it up. And I think they made probably a tactical mistake.

BERMAN: They being the defense. They being the lawyer, should people charged with overturning the Georgia election.

MOORE: They should have cleaned it up. But they did have that sort of train wreck of an exercise listed to the DA yesterday. And now we hear that the witness they're waiting on is this lawyer who they tried to put up yesterday and he tried to say, well, I don't want to be disbarred. I've got privilege. Well, clearly, if we believe Ms. Merchant, and she said it in court with her phone. She's got text messages from this lawyer which will refute the testimony of the District Attorney. So they may have wanted to lock Ms. Willis in which they've done yesterday. Now they're going to get information if the judge allows the privilege to be breached to put, you know, to counter the testimony.

HONIG: Yes, it's interesting, because this is going to be sort of a moment of truth here because yesterday when the defendants tried to get into these texts in this testimony, Nathan Wade raised the privilege, the attorney-client privilege. This guy represented him to some extent in his divorce and said, no, shut up, can't talk. He has a right to do that.

But if Fani Willis and Nathan Wade are going to say we met these charges head on. We were transparent and open. It's hard to reconcile that with invoking the privilege on what could be a really crucial piece of evidence. If there are, to be clear, if there are texts from Nathan Wade to this lawyer before Nathan Wade and Fani Willis say the relationship started showing that they were already in a relationship, that's a big if. But if that exists, that's a game changer.

BERMAN: All right, guys, standby for a second. Let's go back to Fulton County, Georgia. Laura Coates outside the courthouse now. And this morning begins with a surprise, Laura.

COATES: Absolutely. I mean, what a shock. If you thought it was shocking that she actually appeared to testify yesterday, it's all the more shocking that today they're not going to continue because at the end of yesterday's hearing, we were all in the impression why? Because the judge said as much, the party said as much that she was going to testify today. This tells me a number of things. Number one, they feel they have extracted all that they can from her, that she's no longer a useful witness to either side.

Now, when you're talking about her own special counsel team, they believe that she should never have likely even had to be in this position today or yesterday to testify. Remember what we're here for? We're not here in divorce court proceedings. We are here to see if she will be disqualified as the head of the prosecution team And her entire prosecution team thereby disqualified and removed by an outside agency based on a conflict of interest.

[09:15:14]

Now they have yet to show that through line we've all been talking about. I had Nick Valencia here with me now. We've been talking about this a great deal. Yesterday, you and I were side by side when we had that shocking moment that she appeared. She was confrontational. She was also persuasive. And she undermined their case and their ability to say that she somehow had that through line. Now, that might be part of why she's not here today, but who is next could actually be helpful to those who want to disqualify her.

NICK VALENCIA, CNN CORRESPONDENT: That's right, and those that have spoken to around her say that she was rightfully indignant, yesterday. She is defiant. And Fani Willis, it really wasn't a surprise to see her demeanor on the stand yesterday. It was of course, it surprised to see her come in as hot as she did. She had to be calm down, according to those that we've spoken to during that break. But it wasn't a surprise necessarily to see her stand her ground.

Fani Willis is a strong, independent woman. She showcased that yesterday. She is a formidable force. And she is all about respect. Talking to those around her, she is not going to be one of these people that thinks that somebody is going to go have to fight or defend her own name. She wants to do that. And that's what we saw yesterday. She saw -- we saw her call Ashleigh Merchant a liar. She is insulted by the very essence of these allegations. She feels that is a gossip, an attempted gossip -- an attempted, creating a circus and a spectacle and to delay what was on track for an August trial date. And it has. It has already made an effect to this case.

COATES: And by the way, she said as much. I want to play that sound because she was very indignant about the accusation that she had engaged in sexual interactions with Nathan Wade at an early time. Here she is.

(BEGIN VIDEO CLIP)

MERCHANT: You and Mr. Wade met in October 2018 at a conference?

FANI WILLIS, FULTON COUNTY DISTRICT ATTORNEY: That is correct. I think in one of your motions, you tried to implicate and slept with him at that conference, which I find to be extremely offensive.

MERCHANT: You started dating shortly thereafter, correct?

WILLIS: A lie. That's one of your lies.

You've been intrusive into people's personal lives. You're confused. No, no, no, no, this is a truth. And it is a lie, it is a lie. You see.

MCAFEE: All right, Ms. Willis, thank you, we're going to take five minutes.

(END VIDEO CLIP)

COATES: I mean, Nick, think about that moment there because at the core, remember what needs to be proven, it needs to prove there was a financial benefit derived from an improper relationship leading to such a conflict that a defendant could not get a fair trial. She is indignant about the accusations and going into that particular aspect of it.

VALENCIA: The inference is that she needs a man to pay for her. And she made it clear yesterday that a man is not a plan. It's not somebody who's going to, you know, treat her or sort of be this savior in her life. She doesn't need that. She made a point.

COATES: Well, that was important because of the finances, right? Because the idea of whether the personal benefit was derived, was tied to financial gain.

VALENCIA: And I want to pick up on this because there was an inference yesterday from defense attorneys that her having these stacks of cash somehow is sort of nefarious, or that should lead to some, you know, question marks. It might be a cultural thing. I know a lot of black and brown people who keep cash on them. There's a mistrust of the systems at large people feel like this is our hard earned money that we earn with blood, sweat and tears. It's certainly something that happens here in Atlanta and beyond in our community. So I don't think that is sort of a gotcha moment for the defense attorneys at all, Laura.

COATES: Well, we will see what it means. My great grandmother died at 105. And I know she had money in her installation. John?

BERMAN: So they are in recess right now in that courtroom. The pictures that you're seeing on the screen are from yesterday. As of now there is no judge presiding over this case. He is outside of the courtroom, everyone is outside. They're trying to figure out what happens next, when they will have testimony from the former law partner of Nathan Wade, and how much he will be allowed to say. They're arguing about privilege, these little discussions that are going on right now. We're going to have much more from that courtroom in a moment.

[09:19:04]

We are also waiting for a ruling here in New York in the civil fraud trial against Donald Trump. All this happening as we've learned about the death of Russian opposition leader Alexey Navalny. We heard from Vice President Kamala Harris. We are now waiting to hear from President Biden as well.

(COMMERCIAL BREAK)

BERMAN: The shocking breaking news this morning. Russian opposition leader Alexey Navalny reported dead in a Russian prison. Russian state media claims that doctors tried to resuscitate him for more than half an hour. Vice President Kamala Harris says the U.S. is still working to confirm the reports but called the news terrible and said, quote, Russia is responsible. With us, CNN chief international correspondent Clarissa Ward and Matthew Chance, CNN chief global affairs correspondent. Clarissa, first to you, to wake up to this news in the United States this morning, as I said, simply shocking.

CLARISSA WARD, CNN CHIEF INTERNATIONAL CORRESPONDENT: Shocking, I think in many ways, John, everyone had feared the worst case scenario would be that something like this would happen to Navalny. We knew that he had been held in very difficult circumstances that he had been abused, that he had been on hunger strike that he had been suffering from a number of health problems.

But actually he had appeared in court as recently as yesterday. He appeared to be in reasonably good shape. He was making jokes, which is of course very typical of Alexey Navalny, a great sense of humor. And so there is a kind of absolute disbelief that this could happen, that this would happen right now. We are still working to get answers as to what exactly happened. All that we have heard from Russian media is that he went out for a walk, that he collapsed, that ambulances on the scene came to the scene tried to revive him for some half an hour.

[09:25:06]

But nobody yet knows exactly what happened and how it happened. And frankly, it's very unlikely that we will ever get any satisfactory answers from the Kremlin as to what exactly killed Alexey Navalny. Now, we did just hear moments ago from his wife, Yulia Navalnaya. Their love story is an incredible one. For many years they had been together since they were in their early 20s. Very much devoted to each other.

She had not been outspoken in previous years since he had been arrested again, because of fears for the security of their children and wanting to be something of a mother. But she at the Munich Security Conference, stood up on the stage and she said, you know, I debated with myself for a moment, do I go back to my family? Or do I stand on this stage and address you all? And I asked myself, what would Alexey do? What would Alexey want me to do? And I knew in that moment that I had to come here and to address you.

And she said that it was vitally important that Putin be held responsible, that justice be delivered, not just for the crime perpetrated against her own family, but more broadly for the crimes perpetrated against the Russian people by the regime of President Vladimir Putin. So a very shocking moment, lots of questions still to be answered, and also very much hanging in the balance, what this means in Russia, what it means for Russian-Putin critic, Vladimir Kara-Murza, who has been poisoned twice, who is also serving time in a Russian prison, whose security now of course, will be a vital topic of conversation at the Munich Security Conference and elsewhere. John?

BERMAN: And what it may be says about Vladimir Putin and how he feels currently about the world order, and how much of a backstop there is really against him right now. Michael Chance to you, the likely reaction inside Russia. Navalny, a hero in the democratic world. People look at him. They see his courage. Clarissa was just mentioning, what would Alexey Navalny do? Alexey Navalny went back to Russia by choice after an attempted murder of him apparently with the poison Novichok. He chose to go back to Russia to face prison there. But how is he seen inside Russia, Matthew?

MATTHEW CHANCE, CNN CHIEF GLOBAL AFFAIRS CORRESPONDENT: Yes, well, certainly. And there's no question over how courageous Alexey Navalny has been not just in returning to Russia after being poisoned, but in his concerted campaign over many years to expose official corruption at great personal cost inside Russia. And that has been a courage that has been inspiring for many, many Russians.

Look, one of the reasons that he was such a sort of figure of hatred by the Kremlin, why they feared him so much is that he did have this ability to really touch people and to bring tens of thousands of ordinary Russians out onto the street, in support of his campaign against official corruption, because corruption is something that touches everybody's lives inside Russia. And from the soundings I've taken from people I've called and spoken to inside Russia, over the course of the past several hours, whatever they thought of it, in terms of the wisdom of, you know, kind of continuing in that campaign, people are genuinely shocked that this should happen to Alexey Navalny in the custody of the prison authorities, despite everything that's happened to him.

I think probably the big question now is what will the impact of this death be on the streets of Russia? Will there be a turnout of mass protests in the way that they have been in the past when Alexey Navalny has called for them, for instance, in the defense of his corruption campaign, or will it send a chill, you know, with this death, sort of chill even further, the opposition activity in Russia, which has already been, you know, really frozen out, you know, people are terrified about protesting on the streets of the capitol and elsewhere in the country because they get arrested, and they get put away, and who knows who knows what can happen to them behind bars.

But what we do know is that this death comes just weeks before a presidential election in Russia. It's not much of a competitive campaign, of course. Everyone expects Vladimir Putin to be appointed for a fifth term in the presidency. But there are opposition calls within the past few hours for people to go and cast their ballots. But to write Alexey Navalny on the ballot sheet, you know, does spoil their balance.

And so that may be something that we see happen. We're just going to have to watch very carefully now. What the response of the Russian people will be to the death of Alexey Navalny in a Russian prison.

[09:30:02]

BERMAN: Nikki Haley, U.S. presidential candidate just wrote, Putin did this. The same Putin who Donald Trump praises and defends. The same --