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Don Lemon Tonight

DHS Memo Warns of Potential for Violence Around Saturday's D.C. Rally Supporting January 6 Rioters; Durham Investigation of the Investigators Yields Two Relatively Minor Cases in Two Years; Justice Thomas Speaks Out on the Judiciary, Race, and the State of U.S. in Rare Speech; PA GOP Moves to Get Millions of Voters' Personal Info; Atlanta Elementary School Accused of Segregating Black and White Students. Aired 11p-12a ET

Aired September 16, 2021 - 23:00   ET

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

[23:00:00]

(COMMERCIAL BREAK)

DON LEMON, CNN HOST: A warning tonight from the Department of Homeland Security about the potential for violence at Saturday's right-wing rally at the Capitol supporting the January 6th insurrectionists. A memo obtained by CNN also warns that violence could break out tomorrow, the day before the planned rally.

And just weeks ahead of the Supreme Court's new term in October, Justice Clarence Thomas, who rarely speaks in public, giving a big lecture today at the University of Notre Dame on the subject of some people wanting to make changes to the Supreme Court. Thomas is warning people not to try to change it.

(BEGIN VIDEO CLIP)

CLARENCE THOMAS, ASSOCIATE JUSTICE, U.S. SUPREME COURT: I think we should be careful destroying our institutions because they don't give us what we want when we want it. I think we should be really, really careful.

(END VIDEO CLIP)

LEMON: So, I want to bring in now CNN senior political analyst John Avlon and political commentator Charlie Dent, a former Republican congressman from Pennsylvania. Gentlemen, good evening. Good to see both of you.

JOHN AVLON, CNN SENIOR POLITICAL ANALYST: Hi, Don.

LEMON: So, John, new warnings tonight from the DHS ahead of this pro- ins insurrection rally this weekend, citing online chat encouraging violence a day before, talk of storming the Capitol. One user even commented on kidnapping a member of Congress. Is this an abundance of caution or is this something more?

AVLON: It's an abundance of caution but it is well deserved because, of course, they underplayed the danger last time around with disastrous results.

So, I would rather have DHA and law enforcement paying close attention to the chatter and the threats around this, quote unquote, "protest" than downplaying it again and it does look like they are taking it seriously.

But there is real danger not only from the chatter and the comments but from that combustible combination of counter protests or folks trying to get ahead of it. So, this is something for us all to keep our eyes in this country.

LEMON: Charlie, even as the Capitol is surrounded by fencing, law enforcement at the ready, the DHS is warning, says that lone wolf agitators could mobilize to violence with little to no warning, particularly in response to the confrontational encounters with perceived opponents or calls for escalation by key influencers.

Key influencers? You heard the former president today saying insurrections were being persecuted, calling the election rigged. I don't even know if that is a dog whistle. I mean, with that kind of thing --

AVLON: It's not a dog whistle.

LEMON: -- that's a bullhorn, Charlie. Is that kind of talk inspires violence?

CHARLIE DENT, CNN POLITICAL COMMENTATOR, FORMER PENNSYLVANIA REPRESENTATIVE: Well, certainly, former President Trump incited the last insurrection. He has set that mob on the Capitol. His comments today were completely unhelpful and incendiary. And, you know, it might motivate some of these people to become violent.

I certainly hope not. We all hope for eventual protest. But as John just said, law enforcement is better prepared this time out and the National Guard stands at the ready. So, I am confident that law enforcement will be better prepared to intervene should things get out of hand.

But we also have to worry about counter demonstrators and these pro- insurrectionist protesters clashing. That could be a flash point that we have to watch very carefully as well.

So, look, I walked around the Capitol yesterday morning, Don. They were making preparations. Things look to be in order. So, I'm reasonably confident but I'm not making any predictions.

LEMON: Yeah. John, I just want to play this for you. It is a clip from -- of Trump supporter. This is from our Donie O'Sullivan. He spoke to them about this upcoming rally. Here it is.

(BEGIN VIDEO TAPE)

DONIE O'SULLIVAN, CNN REPORTER: You mentioned there are a lot of chats, various events happening here in Washington next week on the 18th -- JERRY FITZGERALD, TRUMP SUPPORTER: Yes.

O'SULLIVAN: -- to support, I think, people who are detained, arrested.

FITZGERALD: Yes. They are political prisoners, pretty much.

CASSANDRA FITZGERALD, TRUMP SUPPORTER: We are hearing this is set up again.

J. FITZGERALD: Yeah. Right.

C. FITZGERALD: So, I mean, no one wants to get involved with that.

J. FITZGERALD: We haven't made our mind up yet.

O'SULLIVAN: I have seen this talk, too, that -- do you think maybe a lot of folks like yourselves may not show up because, you know, it's being said that maybe it's a setup or --

[23:05:04]

J. FITZGERALD: We're really not sure because I know, on January 6th, it was huge and there was so much chatter on social media about it with all the groups that me and her are in. I haven't heard too much about this. Very little.

C. FITZGERALD: Everybody is saying it's a setup, don't go.

J. FITZGERALD: I wouldn't be surprised if it wouldn't be much. We haven't really made up our minds yet.

(END VIDEO TAPE)

LEMON: I mean, no one knows how many protesters will come but there is a counter-rally plan that could spark confrontation. There is also the possibility of violence in other cities.

AVLON: There is. And look, it is part of the ecosystem. You know, on the one hand, you heard those two folks say they are concerned it's a setup. Could that depress turnout? Of course, it could.

But you also heard that rhetoric about the folks who attacked the Capitol being held as political prisoners, which is an absolute lie. It's disinformation. It's misinformation. But it reflects the kind of swill these folks are being sold on social media and that itself can provide an incitement.

LEMON: All right. Gentlemen, thank you very much. I appreciate it.

I want to bring in now Congresswoman Zoe Lofgren, a California Democrat who is a member of the Select Committee investigating the January 6th insurrection. Representative, thank you so much. I appreciate you joining us this evening.

First, I want to get your thoughts about this DHS warning of violence this weekend at this pro-insurrection rally, even online chatter about kidnapping a member of Congress. How concern -- what is your concern level right now?

REP. ZOE LOFGREN (D-CA): Well, you know, I'm trusting the security professionals. I have been briefed by the chief of police and the two sergeants at arms. They have laid out the preparations that they have made that appear to be much better than in January.

But it's a concern that we've got this element in American society that is embracing violence to promote a lie. And, unfortunately, we have elected political leaders and former elected political leaders that are promoting the same lies.

I mean, please, the January 6th insurrectionists have been charged with crimes. Why? They viciously attacked police officers. They maimed them. People died. This is not about politics. It's about criminal activity.

LEMON: But even with all of that, congresswoman -- I want to move on. I want to talk about this. But with everything that you just said, it just -- I mean, it hasn't just occurred to me. But in this interview, all of that, all of the evidence, all the people who have been charged, everything, the video, whatever, you still have many people in this country who have become emotionally attached to a lie.

How do you -- when someone is emotionally attached to a lie, can any amount of truth or evidence change things? It seems like we may be in this period for quite some time.

LOFGREN: Well, we are in a serious challenge to American democracy right now. I have been doing some reading about fascist propaganda in the past. You can take a lie. And if it is amplified by leaders and feeds into existing prejudice among the population, it can be perceived as truth, even though it's completely false.

We have seen that happen here in America. I am not sure I ever thought that would occur, but it has. And so we've got to confront that and figure out how to deal with it to save our democracy.

LEMON: Yeah. Well, I understand what you're saying, but it's not just -- it is the repetition of the lie. That's part of. But there is an emotional attachment to hanging on to the falsity of the big lie, of what happened in 2020, the election in 2020.

Representative, I appreciate you joining us. Thank you so much.

LOFGREN: You bet. Any time.

LEMON: Thank you. They said that they were investigating the investigators. They said that they proved the Mueller investigation was a witch hunt. And now, it looks like it's fizzled out. A year after what was supposed to be the big October surprise, what happened? And what is this -- what is this kind of thing doing to our country?

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[23:10:00]

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LEMON: Tonight, a lawyer named Michael Sussmann is being indicted on charges of lying to the FBI. It is part of the special council's inquiry into the origins of the Trump-Russian investigation.

I want to discuss it now with CNN senior legal justice correspondent Evan Perez and senior legal analyst Elie Honig, a former federal prosecutor. Good to see both of you.

Evan, you are up first. An indictment tonight in this long awaited Robert Durham investigation, but it's not what people were built up to anticipate, certain people were built up to anticipate. Take us through the charges here, please.

EVAN PEREZ, CNN SENIOR LEGAL JUSTICE CORRESPONDENT: Yeah. Look, this was -- there was a lot of hype over this investigation by John Durham, who was appointed as special counsel by Bill Barr, you know, to look into the investigation, the Trump-Russia investigation.

Durham today filed charges against Michael Sussmann, who is a cybersecurity lawyer here in Washington who worked for Perkins Coie, a law firm that represented the Clinton campaign in 2016.

He is accused and he is charged with lying to the FBI at a meeting in September 2016 in which he handed over information that purported to show some kind of communications between a server belonging to the Trump Organization and a Russian bank called Alfa Bank.

[23:14:53]

PEREZ: Now, according to Durham, this was a key lie, a material lie that is worth bringing this charge of making a false statement because he says that Sussmann didn't disclose that he was working at the time for the Clinton campaign, presented himself as working for some tech executive.

What we see in these documents today, though, Don, we see in the documents from Durham, it seems the FBI knew fully well that Sussmann was working for the Clinton campaign. It says that in the notes, internal notes from the FBI. And also the fact that Sussmann worked for the Clinton campaign and the Democrats was not a secret. This was something that well known within the FBI.

We got a statement from Sussmann's lawyers who say that this is politics, not facts, and accuses John Durham of advancing a conspiracy theory. And as you pointed out, this began with so much hype back in 2019 and certainly they were expecting an October surprise, the president was, and that really has not materialized. At this point, he is only the second person that has been charged in this investigation.

LEMON: Elie, listen, you know, this Durham investigation was supposed to uncover earth-shattering revelations about the origins or as the former president said the oranges of the Russia investigation within the FBI probe to prove that it was a hoax, a witch hunt. So, what happened here?

ELIE HONIG, CNN LEGAL ANALYST: Don, this has been a Donald Trump political revenge fantasy enabled by Bill Barr from day one. Let us go back almost 2-1/2 years, like Evan said. May of 2019, the Mueller report has just come out. Donald Trump is thirsty for revenge now. And he says I want to investigate the investigators. And Bill Barr, as he always did, snapped to focus and appointed John Durham.

Here we are 2-1/2 years almost later and they have two indictments of fringe players, essentially unknown people on, yes, federal crimes, fairly low-level federal crimes.

Let's also remember, Bill Barr himself personally travelled internationally to try to help this investigation along and Donald Trump himself made calls to other foreign leaders to try to help this along. And even with that kind of firepower brought to bear, I have never seen any case where the AG and the president are involve, they came up with a dud.

LEMON: Hmm. Evan, you know, this probe has been -- you know, Elie just said it, going on for more than 2-1/2 years, touted by the former president, his allies, and God knows how many right-wing pundits as a -- you know, the unmasking of the deep state.

But there has been just -- you know, one other indictment on a low- level FBI agent who pleaded guilty to falsifying an email related to investigating Carter Page. So, I mean, is this it? I mean, what is this?

PEREZ: Yeah, I mean, look, at this point, we believe -- based on our source, we believe that Durham is wrapping up his report. His investigation is pretty much completed. If he has some other big shoe to drop, we expect it would happen by now.

And just for context, Mueller's investigation, right, the Trump-Russia investigation, 34 people were indicted, three companies. Again, this investigation, this investigation of the investigators has gone on longer than Mueller and this is only the second person charged.

And if you remember, the president -- the former president and his allies would attack Mueller, saying that a lot of the stuff brought by Mueller was so-called process crimes. Well, that's what this is. I mean, this is what -- this is exactly fitting into the criticism that they made so often.

And all of the things that they were expecting, right, if these -- these fall into a pattern. Not only the unmasking investigation that you were talking about. There was also expectation that they would bring charges against people in the Clinton foundation. Obviously, they wanted --

LEMON: There was -- let's see. They had the unmasking allegations involving General Michael Flynn, investigations of Hillary Clinton Foundation, Uranium One, her server and so many more.

PEREZ: They promised that Jim Comey and John Brennan would go to prison.

LEMON: Well, what happened?

PEREZ: It hasn't happened.

(LAUGHTER)

LEMON: All right. Evan, thank you very much. Elie, you are going to stick around. There is something else that I want to talk to you about.

Supreme Court Justice Clarence Thomas is giving a rare speech, talking about race in the state of the country. And as the Supreme Court moves further and further to the right, he has got a warning. That's next.

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[23:20:00]

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LEMON: The Supreme Court's deeply controversial decision not to block Texas's new restrictive abortion law is leading to new scrutiny over the role of the court. But tonight, one of the court's most conservative and famously silent justices is speaking out. When asked what is the biggest threat to the courts in the coming years, Justice Clarence Thomas is saying that it is their own politics.

(BEGIN VIDEO CLIP)

THOMAS: When we do that and we begin to venture into politico, the legislative or executive branch lanes and resolving things that are better left to those branches, those of us, particularly in the federal judiciary with lifetime appointments, are asking for trouble. I think a lot of the pressure, the nomination and selection process, is because of that.

[23:25:00]

THOMAS: I think the court was thought to be the least dangerous branch and we may have become the most dangerous.

(END VIDEO CLIP)

LEMON: Hmm. Well, that certainly gives us a lot to discuss with CNN senior legal analyst Elie Honig, he is back with me, and CNN legal analyst Areva Martin.

Okay. Elie, welcome back. Areva, evening. Good to see you. Elie, I'm going to start with you. We almost never hear from Justice Clarence Thomas. Does it surprise you to hear one of the most conservative political justices on the court saying politics is the biggest threat?

HONIG: It does surprise me to hear Justice Thomas say anything, but especially here to say that. I mean, this is a growing thing. Just in the last few weeks, we have heard similar sentiments from Justice Amy Coney Barrett, even Justice Stephen Breyer. My reaction to this is it is lovely to tell us we on the Supreme Court are not political, but how about acting like it? I mean, we can all see what's going on here. It goes back to really 2000, Bush v. Gore, when the five conservatives took this side and the four liberals took that side. That has not happened. That is not coincidence. We can do the math on that.

We saw it again just a couple weeks ago with the Texas abortion case. The five justices who said, they said, well, we can't touch it now because of procedural issues, just so happened to be five conservative justices that most of whom are on record as being, you know, in favor of striking down Roe v. Wade. We can't ignore that.

LEMON: Yeah. Areva, so, he talked about his experience growing up in segregated Georgia in the 50s and 60s. Let's listen.

(BEGIN VIDEO CLIP)

THOMAS: There was, of course, quotidian and pervasive segregation and race-based laws, which were repulsive and at odds with the principles of our country. Despite that, there was a deep and abiding love for our country and a firm desire to have the rights and responsibilities of full citizenship regardless how society treated us. There was never any doubt that we were equally entitled to claim the promise of America as our birth right.

(END VIDEO CLIP)

LEMON: So Justice Thomas has been criticized by some Black Americans for his decisions related to race, Areva. I spoke with Harvard Professor Randall Kennedy (ph), who said, hey, it is okay. He understands why some Black Americans call Clarence Thomas a sellout. Is that fair?

AREVA MARTIN, CNN LEGAL ANALYST, CIVIL RIGHTS ATTORNEY: I think it's absolutely fair. When you listen to Clarence Thomas, in some ways, Don, all you can do is laugh. He made a very bold statement in the speech tonight that justices don't make decisions based on their personal decisions. But what we have seen from him is exactly that, that he does make decisions based on his personal political preferences and beliefs.

He says that he is against Roe v. Wade. He wants to overturn Roe v. Wade, he is not in support of abortion, and he has ruled consistently with that. There are at least five decisions where he has ruled against abortion and we can't find any decisions where he has ruled in favor of choice.

So at a time when he wants us to think that it's the media that is causing faith in the Supreme Court to be undermined, he ignores the actions of Mitch McConnell, the ignores the rush confirmation process of Kavanaugh and Amy Coney Barrett.

So, I don't think we can take anything that Justice Clarence says. We have to take it all with a grain of salt. He is not to be trusted and his comments about race and his comments about choice are all in many ways despicable.

LEMON: People are going to say, my gosh, they are up on CNN and, you know, Don Lemon is allowing the justice to be called a sellout and Areva is calling -- those are words from a Harvard professor that you are discussing. You are saying that you think it is fair for some folks to be, especially Black folks, to be skeptical of Clarence Thomas, especially the way that he has ruled on issues of race.

MARTIN: Oh, absolutely, Don. Yes, you're going to be criticized and I'm going to be criticized. That's okay. It comes with the job. We have to speak truth to power. We would be remiss if we did not call out Clarence Thomas for the way that he has handled himself, comments that he makes, and the rulings that he has made while sitting on the court.

He is the oldest sitting judge. He has been on the court longer than any other justices. He was appointed. And one of the other things, let me just say this about the speech.

LEMON: You mean the longest sitting justice, not the oldest, but go on, sorry.

MARTIN: You're right, the longest sitting justice. He was so dismissive of the claims of Anita Hill during his speech tonight and said that this whole confirmation process, he called it craziness and said that it was politicized and it was about abortion, would not recognize the legitimate claims that Anita Hill made. So, again, every time he opens his mouth, I think we have to be very skeptical about anything that he says.

LEMON: Elie, the Texas decision by the court is driving more calls from democrats who feel that the court is enforcing minority rule and want to add more justices. Thomas spoke to that tonight as well. Here it is.

[23:30:00]

(BEGIN VIDEO CLIP)

THOMAS: We have lost the capacity even I think as leaders to not allow others to manipulate our institutions when we don't get the outcomes that we like when, for example, President Roosevelt threatened to pack the court, there was enough sense of what the court meant and what separation of powers meant to criticize him.

Today, you see almost no criticism or very little when you have those kinds of conversations. And I have been on the court for 30 years. It's flawed. But, you know, I will defend it. It works. It may work sort of like a car with three wheels, but it still works. You know? Somehow, you sort of hobble along and you recognize its imperfections. And I think we should be careful destroying our institutions because they don't give us what we want when we want it.

(END VIDEO CLIP)

LEMON: Elie, hasn't the destruction already begun? Mitch McConnell has played politics with the selection of Justice Gorsuch, refusing to even meet with President Obama's choice of Merrick Garland.

HONIG: Yeah, it's easy to say the kind of things we just heard Justice Thomas says when you are part of a 6-3 majority, right? Then you are perfectly happy with how things are. And people may not know, the nine, the number nine justices, that is not set in stone. That can be changed by Congress.

The question is: Are Democrats going to have the political will to do that? Democrats control the House, the Senate, and the White House right now. If they were willing to change the filibuster rules, they could do something about it. But thus far, the political will is just not there from the president and others.

LEMON: Elie, Areva, thank you both. I'll see you soon. Appreciate it.

LEMON: Trump's big lie alive and well with Republicans in Pennsylvania. State lawmakers are trying to launch a review into the 2020 election and they are subpoenaing voters' personal information to do it. That's next.

But first, all next week on CNN, our special "Champions for Change" series will spotlight everyday people who don't make headlines but still smash barriers and inspire others to do the same. Here is a quick preview.

(BEGIN VIDEO TAPE)

UNKNOWN (voice-over): Join your favorite CNN anchors for a special week.

UNKNOWN: Immigrants enrich our country and they are proving it.

UNKNOWN (voice-over): Sharing stories of changemakers.

SANJAY GUPTA, CNN CHIEF MEDICAL CORRESPONDENT: This is one of the most devastating and yet preventable issues of our day.

ANDERSON COOPER, CNN ANCHOR: He helps the defenseless learn to defend themselves.

UNKNOWN: Peter teaches courage, confidence, trust.

UNKNOWN: She saw a need, and every day, she sets out to fulfil that need.

UNKNOWN: He is using scuba diving for a better environment.

UNKNOWN: She is a trailblazing Black woman.

UNKNOWN: Preserving the ocean for our children.

UNKNOWN: Empowering women for financial independence.

LEMON: No one should drown because they don't know how to swim. Very good, very good, very good.

UNKNOWN: Small steps can lead to a big impact.

UNKNOWN: "We Are Hope" (ph) can help kids in school and beyond.

UNKNOWN: He is a champion.

UNKNOWN: She is a champion.

UNKNOWN: For change.

UNKNOWN: Change.

UNKNOWN: Change.

UNKNOWN: Change.

UNKNOWN (voice-over): "Champions for Change," all next week on CNN.

(END VIDEO TAPE)

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[23:35:00]

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LEMON: Despite zero evidence of widespread voter fraud, Republican lawmakers in Pennsylvania have voted to subpoena millions of voters' personal information in order to keep fueling the big lie. The information they are seeking is in this probe, including names, addresses, driver's license numbers, partial social security numbers as well as portions of their voting history.

Why do they need this information? They say to verify voters' identities. If it sounds familiar, it is because Arizona Republicans already tried something like this with their fraudit.

I want to bring in now one Pennsylvania Republican who oversaw the election in this city, Philadelphia city commissioner Al Schmidt. Thank you so much, commissioner. I appreciate you joining us this evening.

Ten months since the election, President Biden won Pennsylvania by more than 80,000 votes and multiple courts have shut down challenges to that vote. There was no fraud. So what are Republicans hoping to accomplish with this taxpayer-funded scheme?

AL SCHMIDT, PHILADELPHIA CITY COMMISSIONER: Well, first of all, the Pennsylvania State Senate Committee with actual jurisdiction over these matters held a whole series of hearings earlier this year resulting in a really responsible, bipartisan package of reforms to improve elections in Pennsylvania. I testified in front of those committees.

This is something entirely different. The subpoenas, I think, that we're seeing now have really only one purpose and that is to try to apiece the former president and his followers in Pennsylvania and to try to relieve pressure on Republican lawmakers to do something.

LEMON: How much of this GOP effort in Pennsylvania is about spreading disinformation to keep talking, to keep this fraud, you know, thing on the front burner?

SCHMIDT: Well, it's really very circular when you look at it. You have lawmakers lying to constituents. You have deceived constituents demanding that lawmakers do something about this issue --

LEMON: About a problem that doesn't exist.

SCHMIDT: And then the lawmakers say what else are we going to do? We have to do something. We have to hold hearings. We have to issue subpoenas. And it is not just a matter of subpoenas.

[23:40:00]

SCHMIDT: It's, as you mentioned earlier, the substance of it, what it is that they are seeking and the privacy component of it.

LEMON: CNN has a new poll. It shows that 78 percent of Republicans don't believe Biden legitimately won despite having no evidence. I mean, this is where Republicans stand. How can you have a democracy when the losers won't accept that they lost?

SCHMIDT: And I think we're really -- you know, this is far outside of my scope as a parochial, you know, election administrator in a city in America. But I think we are entering a very dangerous place here. You have a majority of one of the two major parties that does not have confidence in our democratic process right now.

At some point, when Republicans start winning majorities, I am very concerned that the same thing could happen to Democrats. And I certainly hope that doesn't happen. But if we lose a majority of Americans who no longer have confidence in our democratic process, then that's really a very dangerous thing.

I think fundamentally, what people need to keep in mind is they can't separate their rhetoric from consequences and their rhetoric does have consequences and it manifests itself in death threats to election officials, it manifests itself in what happened on January 6th, and it manifests itself in an erosion of confidence in our democratic process in America.

LEMON: Part of the information these lawmakers are looking for is personal data like driver's licenses and partial social security numbers. How is this going to sit with the nearly seven million Pennsylvania voters?

SCHMIDT: Well, I would expect that the commonwealth and our attorney general, Josh Shapiro, and the city of Philadelphia -- I'm only one member of the Board of Elections here, but I would expect that they would resist this effort, because not only is the information -- everything that you would need to commit identity theft or open a credit card or take out a loan in someone's name with their birthday, with their social security number, with their driver's license number, but it's really very unclear where this information would wind up.

What third party would be provided with this information to do this so-called investigation?

LEMON: Listen, we know that at least two of these lawmakers went to observe the Arizona audit, which turned out to be really a clown show or fraudit as I have been calling it. Are they planning to use that as a model?

SCHMIDT: I don't know. I'm a big fan of the the movie "Charlie Wilson's War." There is a good quote in it that says, hey, we are going to keep doing this political tradition of saying one thing and doing something totally different.

It's a little bit difficult for us to figure out what it is that this obscure committee has in mind here. They won't commit to not providing this information to unreliable third parties, won't even commit to not providing it to someone like, you know, Sidney Powell, who I wouldn't even trust to walk my dog let alone with confidential information about our voters in Philadelphia.

LEMON: Well, then that leads me to this question. What about the audit? Who would have access to these voters' personal data because the audit firm in Arizona widely addressed access, excuse me, and it has been -- had access to these voting booths and it has been a disaster.

I mean, I think they have to -- they are going to have to redo -- and get new voting booths, right, get new machines?

SCHMIDT: And why anyone would want to repeat what is going on or replicate what's going on in Arizona in the commonwealth of Pennsylvania or other states around our country is beyond me. It's a joke and it would be a funny one if it didn't have real consequences that are damaging to our system of government.

LEMON: Commissioner, this is a very important subject. I am sure we will have you back to discuss. We thank you for appearing this evening. You be well and be safe.

SCHMIDT: Thank you, sir. You, too.

LEMON: And an Atlanta elementary school is in the spotlight as the civil rights complaint accuses a principal of segregating classes based on race. But some Black parents are saying they support the idea.

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[23:45:00]

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LEMON: Should race be a factor in determining which classroom a child should be placed? Well, that sounds like a question that harkens back to segregation. In fact, it's at the center of an ongoing controversy at a public school in Atlanta. And for Black parents, the answer is, yes, some Black parents.

The story tonight from CNN's Nick Valencia.

(BEGIN VIDEO TAPE)

NICK VALENCIA, CNN CORRESPONDENT (voice-over): Mary Lin Elementary is located in a predominantly white upper middle class neighborhood in Atlanta. Some parents in the district who would normally send their kids to private school choose instead to send them here, in large part, they say, because of Sharyn Briscoe, a progressive principal whom parents lobbied for years to hire.

But it's Briscoe's alleged conversation about race-based class placement practices that are now the focus of a civil rights complaint.

[23:50:03]

KILA POSEY, MARY LIN ELEMENTARY SCHOLL PARENT: And she then informed me that that wasn't the Black class.

VALENCIA: She said that wasn't the Black class?

POSEY: That is correct. She said --

VALENCIA: How did you react to that?

POSEY: Just a pit was in my stomach. I was like, what do you mean? Like, I don't understand. We have those?

VALENCIA (voice-over): Of the six total second grade classes at the Atlanta public school, Kila Posey says she was told by the Principal Briscoe that Black students, including Posey's daughter, would only have a choice between two of the classes. In July, she and her husband, who work as the school psychologists, filed a federal complaint with the Department of Education.

POSEY: It may not be your 1950s segregation where you have signs above -- um -- water fountains in rooms but it's the same thing.

VALENCIA (voice-over): Atlanta public schools investigated the Poseys' claim, saying in a written statement that Atlanta public schools does not condone the assigning of students to classrooms based on race. As such, the district conducted a review concerning allegations of this conduct at Mary Lin Elementary School. At the conclusion of the review, appropriate actions were taken to address the issue and the matter was closed.

A spokesman for APS would not disclose the specifics of the actions it took against the school, telling CNN, they do not share details of personnel decisions. Briscoe, who is Black, remains the school's principal.

POSEY: And I asked her why she was doing it, and she said because she was building community and that's what she was doing. I kept telling her that she was wrong.

VALENCIA (voice-over): Not everybody agrees with Posey. Some race- relations experts believe that grouping students by race actually could create a healthier environment in classrooms.

KIRA BANKS, CLINICAL PSYCHOLOGIST, FOUNDER OF THE INSTITUTE FOR HEALING JUSTICE AND EQUITY: To be able to have that community inside your classroom can be comforting.

VALENCIA (voice-over): Clinical psychologist Kira Banks says there is psychological research supporting the idea of critical mass in the classroom for minority groups, especially at a school like Mary Lin, where Black students make up an estimated 10 percent of the 599 students.

BANKS: Now, to frame those classes as the Black classes, that, I think, is problematic in the sense of how you frame it and how you articulate the intention and why it's happening. But I think that the desire to make sure that kids don't feel tokenized, that they can go to school and just focus on being in school and being a kid.

UNKNOWN: I would never, ever want my child to be the one Black child in a classroom.

UNKNOWN: I wouldn't wish that upon my kid.

VALENCIA (voice-over): Shortly after the Poseys came forward, these mothers were part of a group of concerned Black parents at the school who wrote a letter in support of Briscoe. They asked us to conceal their identities because of ongoing threatening phone calls to the school in the wake of the segregation claims.

They believe Briscoe acted in good faith. If their child's race was allegedly used as a factor in the class placement, they say they're in full support.

UNKNOWN: I grew up where I was the only Black child in the honors classes in my high school for four years. And when I say that I still have, you know, trauma based on it, I still have trauma based on it. It was very isolating.

Principal Briscoe, she is, you know, is a Black woman. She went to a Black college. She raised two Black sons. There is no one on earth who can say that she does not care about Black children. Even the complainant herself has said that, you know, that her -- that Briscoe supposedly admitted to doing it to build community and so that no one Black child is isolated in a classroom.

VALENCIA (voice-over): The Poseys say the principal violated the Civil Rights Act of 1964 and using race to designate classes for Black students. Posey also alleges an after-school program she ran at the school was threatened to be cut in retaliation for her complaint.

A senior attorney for the NAACP legal defense fund believes they have a case, even if the principal says she was trying to do the right thing. MICHAELE TURNAGE YOUNG, SENIOR COUNSEL, NAACPLDF: The concerns about

one's child being the lonely only are sincerely felt concerns. But be that as it may, the law is what it is and does not permit children to be assigned to classrooms based on race.

VALENCIA (voice-over): In a statement to CNN, Briscoe's attorney said she was extremely concerned about the recent allegations of wrongdoing. Given that this is an active investigation, however, Ms. Briscoe is limited in what information she can share right now, but is looking forward to telling her side of the story at the appropriate time and place.

(On camera): In her response, she is saying that she wanted to build community. Do you think that this was done in good faith on her part?

POSEY: Um, I don't know because, for me, full stop, it's illegal. So I can't really get past if it was in good faith because it really doesn't matter at that point. It -- it's wrong.

VALENCIA: We reached out to the Department of Education but they have not indicated one way or the other, whether or not they are going to pursue the Poseys' complaint. The Poseys say that they want the leadership at Mary Lin Elementary gone.

[23:55:00]

VALENCIA: Meanwhile, the Atlanta public school district says that they will not be commenting on this case beyond the statement that they provided. Don?

(END VIDEO TAPE)

LEMON: Thank you so much, Nick. And thank you for watching, everyone. Our coverage continues.

(COMMERCIAL BREAK)

ANDERSON COOPER, CNN HOST: Good evening. In less than 48 hours in Washington, D.C., there will be a rally of supporters of the former president who are now trying to rewrite the history of what happened on January 6th.

It's a rally in support of those now being prosecuted for their roles in the attack and it seeks to portray many of those being prosecuted as somehow political prisoners.

According to information obtained by CNN, the Department of Homeland Security is warning about the potential of violence, not just on the day of this rally but the day before as well, which is tomorrow. These warnings are based on threats on social media.