Return to Transcripts main page

Don Lemon Tonight

Former President Donald Trump Loses Executive Privilege Case; Prosecution Rests Its Case Against Kyle Rittenhouse; Second Week Of Testimony In Trial Over Killing Of Ahmaud Arbery; Astroworld Music Festival Concert Tragedy; Texas High School And Black Principal Parted Ways. Aired 11p-12a ET

Aired November 09, 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: So, here's our news. Major breaking news. A major legal victory for the January 6th Committee and a big loss for the former president. A federal judge ruling tonight that the committee can have access to Trump administration records relating to the insurrection, which the former president has been fighting to block by claiming executive privilege.

That as the committee issues 10 more subpoenas to Trump allies, including Stephen Miller, a former senior advisor, and Kayleigh McEnany, who was White House press secretary.

Straight to our breaking news now. CNN congressional correspondent Ryan Nobles is here with the breaking news. Ryan, hello to you. So, a defeat for the former president, losing his executive privilege, claiming what? I mean, losing his executive privilege claim, I should say. So, what are we learning? I know that he says he's going to fight back on this. He's going to appeal.

RYAN NOBLES, CNN CONGRESSIONAL CORRESPONDENT: Yeah, Don. He -- it doesn't come as a surprise. He is planning to appeal this process. But what we saw in this ruling from the federal judge in this case was pretty clear. This was kind of a conversation and a decision that she had to make weighing executive privilege against the public interest.

And essentially what she said is that the public interest in getting to the bottom of what happened on January 6 outweighs the executive privilege claim of a president who is no longer even in office.

This is part of what her decision read. She said -- quote -- "privilege exists for the benefit of the republic and is not tied to any one individual."

And that is an important point to make because, of course, Joe Biden and his administration had waived any executive privilege claims as it relates to these documents because they felt that the public interest in the January 6 Select Committee, finding out if there were any connections to the White House in the events on January 6, were much more important. So, this is a very important step in this process, a big legal win for the January 6 Select Committee. It could mean that they could have these documents in their hands as soon as Friday. That's when the National Archives is set to release them. There is, of course, that appeal that the president's legal team -- the former president's legal team, I should say, have already said they're going to pursue.

Whether an appellate court issues some sort of a stay or an injunction to prevent the documents from being released, we're going to have to wait and see. That could be a high bar for the former president to argue. But at the very least, this is a big win for the January 6 Select Committee and the difficulty of continuing to successfully defend executive privilege just got a lot harder for the president -- former president and his legal team.

LEMON: Ryan, were discussing in the previous hour, we had Preet Bharara on, and he is talking about what this means for the Select Committee's investigation. What did you gather from that?

NOBLES: Yeah, I mean, I think more than anything, it just makes their job a lot easier, Don. You know, a part of what we see the committee doing is casting a wide net, right? You talked about how they've issued a bunch of subpoenas today. They've issued 16 subpoenas in just the past 48 hours for people that are very close to the former president.

The subpoenas that we saw issued today were even people that were not only close to him personally but were actually next to him, close in proximity on January 6, in the Oval Office and had conversations with him on that day.

These documents are part of that process of connecting the dots as they have theories as to what went wrong on January 6, what led to the violence and chaos on that day, but they need definitive proof of that. You know, you can see the process as they call these witnesses in front of the committee, as they ask for the documents that they're looking for.

[23:04:58]

They're truly -- they're clearly trying to establish that peddling the big lie, firing people up between the November election and January 6, encouraging them to come to Washington and planting the seeds that there was perhaps an opportunity for -- to prevent Congress from certifying the election results is part of what led to the insurrection.

But they need something definitive to connect those dots. These documents are a big part of that. As we mentioned before, there could be handwritten notes in here that the former president authored at that time. Who was he talking to? Who was at the White House on those days? Who are they making phone calls to? What other forms of communication?

That could all be in these documents. They take those documents. They then connect them to the interviews, the depositions that they're holding. That's how they're going to start to build a case. And from there, that's where they get to the bottom of how to prevent something like January 6 from ever happening again.

LEMON: Ryan Nobles with the breaking news for us. Ryan, thank you very much. I appreciate that.

So, joining me now is the former FBI deputy director, Andrew McCabe. He is now a CNN senior law enforcement analyst and the author of the book "The Threat: How the FBI Protects America in the Age of Terror and Trump." This is right up your alley, this breaking news. So, I really appreciate you joining us. Give me your reaction to tonight's breaking news, Trump losing his executive privilege case.

ANDREW MCCABE, CNN SENIOR LAW ENFORCEMENT ANALYST, FORMER DEPUTY DIRECTOR OF FBI: You know, I think it's a victory for common sense. I think if you read the judge's opinion, Don, it's quite clear. If I could just read you one piece of language that I thought was incredibly compelling. She said that Trump does not acknowledge the deference owed to the incumbent president's judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power exists in perpetuity.

And her ruling made very clear today that it does not, that it is the job essentially of the current president to determine what steps are needed to protect the presidency for the republic. The Biden administration has weighed in on that. And, you know, it's a pretty clear issue. That doesn't mean that he won't appeal it. I'm sure he will. But it's a strong ruling.

LEMON: Yeah. He's already said he's going to appeal it. But I think the wheels are already in motion. We'll talk about that in just a moment because I just want to read a little bit more. The judge's name is Tanya Chutkan. You read part of it. Here's another part.

It says the court notes that the Select Committee reasonably could find it necessary to investigate the extent of which the January 6 attack on the Capitol may have been an outgrowth of a sustained effort to overturn the 2020 election results, involving individuals both in and outside the government."

Andrew, does that speak to intent?

MCCABE: I think it does. And I think it's a really interesting reflection. I'm not suggesting this was intentional. But when we read that tonight, thinking about the subpoenas that we saw issued earlier today and of course yesterday, that's exactly what you're looking at here.

You know, Ryan referred to it as the committee is casting a wide net. I think they absolutely are. I think they're not just investigating January 6 and who walked down the street and who broke a window with a flagpole. They're investigating the potential conspiracy that led up to January 6. January 6 and the insurrection was maybe the crowning event, but they're investigating the possibility that this may have been planned and thought out and built towards for months before January 6. That's why they're looking at people outside the administration who might have been involved in those meetings and conversations and planning.

And people who are inside the white house on the day of January 6. Not major players on the staff but people who were near the president and were able to observe what he was doing, who he was talking to. Those are really important witnesses.

LEMON: I also want to get your take on the new 10 subpoenas from the January 6 Select Committee today, including members of the former president's inner circle like Stephen Miller Kayleigh McEnany. There's a list and photos up on the screen right now.

I mean, these are people who were having conversations with Trump in the hours leading up to the insurrection and during and after, right? What are the most important questions they need to answer, do you think?

MCCABE: Well, I mean, those are the highlight names, right? Stephen Miller, Kayleigh McEnany, those folks who were really in important positions in the administration, in direct conversation with the president, as I said, not just on January 6 but in the days and weeks leading up to it.

And so, there are many, many questions you want to ask them about this topic and conversations they may have had with the president about memos they may have written, information they may have passed to him, and also that second and third order impact like what other people did you see meeting with him? Who else came to meet with him on this day? Where are the visitor logs from who came into the Oval Office? That sort of thing. Those sorts of questions lead you to other witnesses.

So, there's a myriad of directions that you want to go with those folks.

[23:09:59]

But you also want to talk to those less-known folks like Luna, like Molly Michael, like Chris Liddell. These folks who may not have been involved in that planning but may have been around to see it happen.

LEMON: Yeah. Christopher Liddell, John McEntee.

MCCABE: McEntee, sure.

LEMON: John McEntee, Keith Kellogg, Kayleigh McEnany, Stephen Miller, Ben Williamson, Molly Michael, as you said, Nicholas Luna. So, there they are up on your screen.

Always a pleasure, Andrew. Thank you, sir. I appreciate it.

MCCABE: Thanks, Don. Have a good night.

LEMON: You as well. I want to turn now to CNN senior political analyst Mr. John Avlon. John, good evening to you. Thanks for helping us out here in this breaking news. Let me read a little bit more from Judge Chutkan's ruling. It says presidents are not kings, and plaintiff is not president. He retains the right to assert that his records are privileged, but the incumbent president is not constitutionally obliged to honor that assertion.

Presidents are not kings. That's a line first written by a different judge in the case over Don McGahn. Give me your reaction to this.

JOHN AVLON, CNN SENIOR POLITICAL ANALYST: I'm so glad you read that line because it's so important. That presidents are not kings and the plaintiff is not president. Presidential privilege exists for the benefit of the republic, not any particular individual. That gets to the heart of this case in effect.

And this judge's decision, while it will be appealed, is very clear and rooted in common sense as well as the Constitution. The whole nature of this is that by the evidence we've seen to date, and we need more evidence, that Donald Trump and his inner circle attempted to overturn an election. There is nothing more dangerous to democracy than that.

And that's why these records are going to be so key because while individuals may try to defy a congressional subpoena, the records in many cases will speak for themselves.

LEMON: The January 6 Select Committee chair, Bennie Thompson, responded to a ruling, saying, and I quote it here, "The Select Committee appreciates the court's swift and decisive ruling on the former president's lawsuit, which I consider little more than an attempt to delay and obstruct our investigation. The presidential records we requested from the National Archives are critical for understanding the terrible events of January 6th."

What do you think it means for getting to the bottom of what happened on January 6?

AVLON: It's critical because those documents are real-time witnesses. It will be interesting to see why they chose to try to block those particular 700 pages. It's why these subpoenas are so key because some of these individuals were in the room when it happened. And there are still real questions about what Trump was doing, what he knew, when he knew it, and the actions of his chief of staff, Mark Meadows.

These subpoenas and these documents will close that loop. And that in turn will inform not only the accurate history of what occurred, but what remedies can be applied. And that's, I think, the key point here because it's clear that this commission is looking at the attempt to overturn the election and how high it went and how extensive and coordinated it was, whether it leads to a conspiracy.

But then what remedies can be put in place? Strengthening the Electoral Count Act, for example, at the very least. But insurrection and a conspiracy to commit insurrection is something serious that's also addressed in our Constitution.

LEMON (on camera): John, I want you to take a listen to what we heard from Liz Cheney, the co-chair of the January 6 Select Committee today.

(BEGIN VIDEO CLIP)

REP. LIZ CHENEY (R-WY): We are also confronting a domestic threat that we've never faced before. A former president who's attempting to unravel the foundations of our constitutional republic. Aided by political leaders who have made themselves willing hostages to this dangerous and irrational man. Political leaders who sit silent in the face of these false and dangerous claims are aiding a former president who is at war with the rule of law and the Constitution.

(END VIDEO CLIP)

LEMON: So, you heard from Liz Cheney. I'm assuming you saw that anime from Paul Gosar, right?

AVLON: Yeah.

LEMON: So, my question is, what does it say that politicians like Liz Cheney, who speak the truth about what happened on January 6, that people like her and Adam Kinzinger, they're punished by the GOP while the party turns a blind eye to people like Paul Gosar, who promote violence?

AVLON: It says everything about the sickness in our politics and the way the big lie has metastasized inside the Republican Party and the way that that itself is a threat to our democracy and our ability to reason together.

You know, Liz Cheney's comments laid out the stakes very clearly. And in the future, when a new edition of profiles in courage is written, there may very well be chapters on conservatives like Liz Cheney and Adam Kinzinger, who tried to make a commission bipartisan because it's in the national interest.

[23:14:54]

And there will be -- you know, history's villains will be the people who aided and abetted this and threatened their colleagues with total impunity like Paul Gosar, the people who fan the flames of the big lie and continue to practice the politics of incitement. The stakes could not be clearer and the sides frankly could not be clearer.

LEMON: Is it a sickness in our politics or is it a sickness in the Republican Party really?

AVLON: Oh, it's clearly within the Republican Party right now. And it's not all Republicans. That's why the people who stood up -- the Republicans who've had the courage to stand up to their leadership, to stand up to Donald Trump in the impeachment vote, in the January 6 commission, those people are heroes. They should be celebrated no matter what political party you're in.

But we also need to recognize that unfortunately the vast majority of the Republican Party has chosen to aid and abet and go along with the big lie, some out of true belief, some out of simple calculation that it will be their best path back to power.

In any case, it is participating in a fundamental undermining of our democracy and there's just no way you can call yourself a patriot and participate in this big lie.

LEMON: John Avlon, thank you, sir. Appreciate it.

AVLON: Thank you.

LEMON (on camera): Prosecutors wrapping up their case in the murder trial of Kyle Rittenhouse, who shot and killed two men and wounded another during a chaotic protest or chaotic protests following the police shooting of Jacob Blake.

(BEGIN VIDEO CLIP)

JOANN FIEDLER, DEFENSE WITNESS: He sat down. I remember him pulling his hair back. And pulling it back really hard and just his comment was, my God, my life might be over.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[23:20:00]

LEMON (on camera): So, there are some big developments tonight in Kyle Rittenhouse's homicide trial in Kenosha, Wisconsin. Prosecutors wrapping up their case after calling 22 witnesses over the course of six days. The question for jurors, did they prove their case beyond a reasonable doubt?

Now, the defense is calling its witnesses, trying to prove its argument that Rittenhouse fired the fatal shots that killed two men in self-defense.

Here's CNN's Omar Jimenez.

(BEGIN VIDEOTAPE)

OMAR JIMENEZ, CNN CORRESPONDENT (voice-over): With one phase of the Kyle Rittenhouse trial over, the next phase moves forward as the defense begins its case, starting with those who were with Rittenhouse on August 25th, 2020 before and after his shootings that night following heavy protests in Kenosha, Wisconsin.

NICHOLAS SMITH, DEFENSE WITNESS: He repeats, I just shot someone, over and over. I believe at some point he did say he had to shoot someone. I tell him to walk outside and turn himself in. He had said, I had to, I had to shoot someone.

JIMENEZ (voice-over): The next witness said Rittenhouse even personally reflected on what had just happened.

UNKNOWN: Do you recall him saying anything?

FIEDLER: He's pulling it back really hard and just his comment was, my God, my life might be over.

UNKNOWN: Did Kyle respond to anything that was said?

FIEDLER: Yes.

UNKNOWN: What was that?

FIEDLER: That was that he had to.

JIMENEZ (voice-over): It was in these moments that Kyle Rittenhouse shot and killed Joseph Rosenbaum, the first of two killed that night. And it was those moments that were a large focus of the end of the prosecution's case. Rosenbaum was shot four times. Once in the left thigh, once in the hand. He suffered a graze wound to his head. And then he was shot in the back, the lethal shot.

DOUGLAS KELLEY, MILMAUKEE MEDICAL EXAMINER'S OFFICE: Gunshot wound is the one that would cause death as a result of the injuries to the lungs and the liver with the hemorrhage and the injury to the organs themselves.

JIMENEZ (voice-over): The doctor's testimony came with graphic pictures, especially of the gunshot wounds to the head and back of Rosenbaum. All the while, Rittenhouse appeared to be visibly shaken, at times averting his eyes, similar to what many jurors were doing as well. Prosecutors focused on when Rittenhouse fired the four gunshots at Rosenbaum and from what position.

JAMES KRAUS, KENOSHA COUNTY ASSISTANT DISTRICT ATTORNEY: The first gunshots are while Mr. Rosenbaum is facing Mr. Rittenhouse?

KELLEY: Yes.

KRAUS: And you said that at least one of those was intermediate up to four feet away?

KELLEY: Yes.

JIMENEZ (voice-over): Then came the graze wound to the head and the shot to the back.

KRAUS: And is it your opinion to a reasonable degree of medical certainty that the back to front shots to the head and then the kill shot to the back would have been while he was falling or perpendicular to the ground?

KELLEY: The only way that the trajectories of the gunshot wounds to the right side of the head and the back make sense is if he's more horizontal to the ground, and that is occurring at the time that the last two gunshot wounds are heard on the video.

JIMENEZ (voice-over): The defense wanted to underscore how fast this deadly interaction occurred.

MARK RICHARDS, DEFENSE ATTORNEY: The fourth shot is 76 hundredths of a second after that. That is how fast the four shots were fired out of my client's gun. And he goes from the furthest four feet to touching the gun, correct?

KELLEY: Yes.

RICHARDS: So, if I was charging like a bull and diving, that would be consistent?

KELLEY: It would be.

JIMENEZ (voice-over): The rifle used by Rittenhouse that day was displayed in court both by the prosecution and the defense to give jurors a better idea of the gun's positioning as this unfolded. But prosecutors went back to the first two shots, implying any diving or falling motion from the first shot to the thigh up through the hip wasn't voluntary.

KRAUS: The injuries you noted, they'd also be consistent with falling after being struck in the hip?

KELLEY: Yes.

JIMENEZ (voice-over): Omar Jimenez, CNN, Kenosha, Wisconsin.

(END VIDEOTAPE)

JIMENEZ (on camera): Omar, thank you so much for that. Appreciate it.

I want to bring in now Paul Bucher, the former district attorney for Waukesha County, Wisconsin. Thank you, Mr. Bucher. I appreciate you joining.

PAUL BUCHER, FORMER DISTRICT ATTORNEY FOR WAUKESHA COUNTY, WISCONSIN: Thanks, Don. Thanks for having me on.

LEMON: So, the prosecution resting its case today. It's definitely not a homerun for them. But do you think they present a strong enough case for a guilty verdict?

BUCHER: No, I do not. And I was shocked that they rested.

[23:25:00]

I was sort of waiting for what many people call the Perry Mason moment. I knew it wasn't coming. But many of the witnesses they put on, I believe, either were unnecessary. They overcharged the case or didn't support their case. It supported the defense case. And now, the defense is just pounding away at the self-defense.

So, the jury is going to have to determine whether or not Mr. Rittenhouse's belief was subjectively and I think it was and objectively reasonable, and then the amount of force, and that's going to be a big issue on the first-degree intentional homicide that is charged in the complaint.

Mr. Rosenbaum is reckless homicide and it gets very legally complicated, but I believe he will likely be acquitted of all but probably one or two charges.

LEMON: So, you know, with that said, there are so many cameras, right? You hardly get something that happens these days without it being on camera. And the events of that evening are hardly in dispute. It's almost all captured on video. But Rittenhouse was equipped with an AR-15 style rifle in Kenosha, Wisconsin even though he's from Illinois. How important are those facts in this case, sir?

BUCHER: Legally, they're not relevant. Pragmatically and realistically, I've done hundreds of homicides in all different degrees. The jury is going to want to know what the heck were you doing there. While it's not legally relevant to self-defense, it's a question that has to be answered. What were you doing there? Why did you come from Illinois? Why were you there with an AR-15?

Those are going to have to be answered. And they've not been answered. And they can only be answered, in my opinion, with Mr. Rittenhouse taking the stand. The jury is going to want to hear that. Although legally, Don, it doesn't contribute to self-defense. But I've tried enough cases to know legal doesn't necessarily win the day.

LEMON: Mr. Bucher, I appreciate having you on. We're going to have you back as this continues. Thanks so much.

BUCHER: Thanks, Don.

LEMON: Thank you. Three white men charged with killing a Black jogger. The jury deciding if they're guilty is nearly all white with just one Black juror. Michael Eric Dyson is going to weigh in on the trial over Ahmaud Arbery's killing right after this.

(COMMERCIAL BREAK)

[23:30:00]

LEMON (on camera): Testimony today undermining a key part of the defense in the killing of Ahmaud Arbery. The defendants claim that they were trying to make a lawful citizen's arrest when Travis McMichael shot and killed Arbery while he was jogging. But a Georgia police officer who responded to the shooting testifying that Gregory McMichael never said that.

(BEGIN VIDEO CLIP)

DUNIKOSHI (voice-over): Did he ever tell you while you were talking to him that he was attempting to make a citizen's arrest?

UNKNOWN: No, ma'am.

DUNIKOSHI (voice-over): Did he ever use the word arrest?

UNKNOWN: No, ma'am.

(END VIDEO CLIP)

LEMON (on camera): Well, that officer also testifying that Gregory McMichael told him that if he could have shot Arbery himself, he would have. The trial beginning a renewed focus on race in America just months after a while ex-officer was convicted of murder in the death of George Floyd. A nearly all-white jury with just one Black juror will decide the Arbery case.

Joining me now to break this all down and discuss his new book, Michael Eric Dyson, the author of "Entertaining Race: Performing Blackness in America." Michael, always a pleasure seeing you. Thank you so much for appearing.

We're going to get more specific about your book in just a second. But does this case show that despite all the progress that we've made, racism is still alive and well in America?

MICHAEL ERIC DYSON, AUTHOR, PROFESSOR OF AFRICAN AMERICAN AND DIASPORA STUDIES AT VANDERBILT UNIVERSITY: Without question, Don. The persistence of this lethal stereotyping, the distortion of perception of Black people, a Black guy stopping by a house, looking at it, occasioning the thought that he's some kind of criminal or thug when many other people had done the same thing who were white with no problem.

So, again, we are being tracked by the most vicious stereotypes possible about our movements, our mobility. We strike suspicion in the hearts of many white onlookers for no good reason at all.

And this young man taking a jog, running down the highway, met by three vicious white men who were attempting to control his movements and then ultimately killed him, this is indicative that for all the talk and the pretty language and the flowery beliefs about racial progress, we are still in a bad way in this country.

LEMON: Yeah. It's supposed to be a racial reckoning after George Floyd, right? Let's remember, Ahmaud Arbery was killed before George Floyd. It's just taken a while to get through the legal system, a longer time to get through the legal system and come to trial.

You know, we always hear, Michael, of, you know, a jury of one's peers, right? Is there such a thing as justice when you have a jury of 11 white people and one Black person given the county where Arbery was killed is 55 percent Black?

DYSON: I mean, it's neo-Jim Crow. This is a throwback to a time when Black people were barred from juries, when they were disallowed to participate in any process of American democracy or to determine a legal outcome.

And to have 11 jurors who are white in a county that is 56 -- 55 percent Black is a repudiation of every principle of fairness and justice and equity in our nation. And no, I don't think a fair trial can come out of this.

[23:35:01]

Even if these men are convicted, it's more by luck or belief or the hope and the wish that they will, despite history's indications, do something that will be -- that will prove to be just for this young Black man that was murdered. But it shouldn't have to be left up to that kind of guessing and wishing and hoping. The justice system is broken in many ways still when it comes to Black people in this country.

LEMON: The Arbery trial comes just a few months after we all watched the trial for the murder of George Floyd. Your book focuses on Black performance in everyday life and how it's part of the foundation of America.

And it's not just artists. You say that George Floyd was a performer. This is a quote from your book. You said, "Floyd's last performance, sadly, it was a performance of death, embodied all the elements that make Black performance resonate." Explain what you mean by that, Michael.

DYSON: Well, you know, George Floyd is part of a larger drama, a drama that's been going on. Most of us, in fact all of us in life at some point read, from scripts we didn't make, participate in dramas whose origins don't start with our lives. We inherit them.

And Black people have inherited a set of scripts, a set of dramas about race, about progress, about evolution, about going forward and then falling back.

George Floyd was playing out a particular tragedy for Black America, that Black men who are stopped by cops are often meeting lethal ends. And he was a player in that.

Shakespeare said the whole world is a stage and all of us are players upon it. There's a Shakespearean element and there's an August Wilson element, that we are struggling as Black men for some sense of rough justice and it was meted out to George Floyd in a vicious fashion on the streets of Minneapolis.

And as a result of that, he was a performer of his own mortality, of Black mortality, of Black death. And as a result, he has become a martyr and a symbol for so many of us who looked to, you know, the consequence of his death in the trial of Derek Chauvin as the possible indication that we are turning even slightly a corner on race in America.

LEMON (on camera): Look, in your book, it's interesting because you talk about Beyonce being -- you know, overcoming the biggest barriers of blackness, right? But also, Beyonce's husband is weighing in on Jay-z. I mean, Jay-Z is weighing in on Dave Chappelle recently and he said that -- listen to this and then we'll talk.

(BEGIN VIDEO CLIP)

JAY-Z, ARTIST (voice-over): I think he pushed a lot of buttons. I mean I watch it sometime like ugh. But I think that what happens with true art is it has to cause conversation. And, you know, sometimes it's going to be abrasive and sometimes it's going to be off-putting to, you know, to folks. And I think but it opens up an opportunity to have a dialogue about, you know, whatever the issue is.

(END VIDEO CLIP)

LEMON (on camera): So, Michael, Chappelle has said that he is ready to talk and listen to the trans community but only on his terms. He is an influential Black performer. Do you think Jay-Z is right that Chappelle is advancing the conversation even if he's saying things that some find deeply offensive?

DYSON: Yeah. I mean, I think Jay-Z is right. He's got his hand on the pulse of what is happening in this country. And there's a huge debate that performance is a medium for. That is the degree to which we will concede the legitimacy of what has been called cancel culture or proprietary borders we should not cross.

But true art doesn't just make us comfortable. It makes us uncomfortable. It challenges us to think and grow. Now, all art that challenges us is not created equal. Some of it is crude and reactionary. Some of it is thoughtful and creative.

I think Dave Chappelle is an undeniable genius. I think he's raising questions that we still haven't asked, beyond the ones that are controversial.

Why wasn't it controversial when he said about the "Me Too" movement, all the white women who were part of it didn't go out and fire their male agents and instead stuck with them and didn't empower those women?

Why wasn't it controversial when he said, even as a trans person or a gay person in America, that being Black somehow meant some kind of ends in this country that were destructive.

Now, we know there are Black trans and Black gay and lesbian and queer people in this nation. And so, it's a much more complicated nuanced situation. But he's arguing about white trans and the function of race.

James Baldwin said, the problem that many Black people had in the 1960s with Jewish brothers and sisters was not that they were Jewish, it is that they were white. So, can the whiteness of trans people who happen to be white trump their own identification with others as a result of their monitor status?

Those are some of the considerations that he's evoking here. And I think if we take them in toto, Dave Chappelle is doing what a great artist ought to do, even if we disagree with him, even if we are made uncomfortable by his particular positions.

LEMON: Thank you, Michael. The book again is "Entertaining Race: Performing Blackness in America." Again, our thanks to Michael Eric Dyson.

[23:40:03]

Eight people dead in a crowd surge at a music festival. Others injured. Some still hospitalized, including a 9-year-old in a coma. And it took place in my next guest's hometown. The mayor of Houston is going to weigh in after this.

(COMMERCIAL BREAK)

[23:45:00]

LEMON: New developments tonight in the investigation into the deadly crowd surge at rapper Travis Scott's concert. Houston Fire chief tells CNN there's evidence that drugs were involved in the Astroworld tragedy that left eight people dead. He says several people at the festival were treated with Narcan, which is used to reverse opioid overdoses.

This coming as "The Wall Street Journal" reports that investigators are looking into whether there was a bad batch of pills in the crowd possibly laced with fentanyl.

Joining me now, the mayor of Houston, Texas, Sylvester Turner. Mayor, thank you. Sorry about the tragedy. Let's get right into this. I want to start with your reaction to this new reporting. Do you believe drugs were a factor in any of the deaths at Astroworld?

MAYOR SYLVESTER TURNER, HOUSTON, TEXAS: It's hard to say right now, Don. And I don't want to draw any conclusions. We're looking -- we're looking at everything from the very beginning, the beginning of the day all the way to the end. We're looking at the roles that everyone played, what missteps, failures, gaps that may have existed. So, everything is on the table.

What I can say is that when there is a venue and you invite people to that venue, they expect to come, participate, be a part of the concert, and they don't expect to be killed at the event.

LEMON: Yeah.

TURNER: So, we owe it to everyone that comes to make sure that it's safe and it doesn't matter whether this is a county venue like in this case, it happened in the city of Houston. So, we want to look at everything, don't want to rule anything out. But my heart goes out to these -- to the eight persons who have lost their lives and to their families.

LEMON: It is inexplicable when you think about this because -- and a lot of people are upset rightfully so. They're angry that the show continued for more than 30 minutes after a mass casualty event was declared. I mean, people were yelling about deaths. But Scott says that he wasn't aware of how bad the crowd situation was. And this situation, who was responsible for shutting things down?

TURNER: Well -- and we're taking a look at that, because the way the stage was -- the way things were designed, you had these moat areas that extended into the crowd, and it was primarily intended, I guess, for those who for security, for those who were monitoring the crowd, they are the ones who should have had eyes on what was happening. If people were going down, they should have alerted the producers and everyone so that things could be shut down at that moment. There were indications even from Travis himself when he saw emergency persons coming in to assist someone, others who were down, but the program continued. So, we want to -- I think it's important to look at all of that.

But what is clear is that if someone has fallen and you've got all of these people that are in this tight -- these tight quarters, you do want to stop things to get those persons out to make sure that everyone is safe before you continue.

So, you know, it's important to look at all of that. That's why I don't want to rule anything out. I don't want to draw any conclusions.

LEMON: Got it.

TURNER: And we just have to look and where there were failures, we need to acknowledge them. And so, we owe that to the family members.

LEMON: Let me ask you because you were at a city council meeting today where members of the public were telling their stories. One concertgoer says that he has worked festivals in the past and had never seen that much unpreparedness and that cell service didn't even work.

CNN is also learning that Houston firefighters stationed outside of that venue on Friday night weren't in radio contact with the emergency medical providers hired by the concert organizers.

What happened with the communications? Have you guys established that yet, figured it out?

TURNER: We're looking at it to understand how all of this was designed. You had to -- for example, this was at a county facility. They entered into a contract with Live Nation, the promoters, producers of this particular event. And then they were responsible for providing let's say the medical support all within the confines of this facility.

The Houston Fire Department, for example, was not a part of the deal. It was Chief Pena who is the chief of the fire department, who just based on experience had personnel and EMS units right there at the NRG Park right outside just in case they were needed, and thank goodness he did take those steps. But we kind of want to take a look at all of that to see who was responsible for what and where there were missteps.

LEMON: So, over the weekend, we were told that authorities were hoping to get video of the event from Live Nation. Has the Houston Police Department been able to get a hold of that video? And if so, what are they learning from it?

TURNER: Well, they have gotten some video, Don, but we think that there's more to be obtained. We have certainly made a request on Live Nation to provide all of the video that they have.

[23:50:04] I can't tell you whether or not we have received it all, but we certainly have made a request for all. Bear in mind that this is a criminal investigation. So, it will be obtained, whatever that is out there. And then any other providers out there, Apple, for example, may have footage as well.

So, whatever video footage is of this whole concert, inside as well as out, we want to obtain all of that. But this is a part of the criminal investigation and the authorities are taking a look at everything.

LEMON: Mayor Sylvester Turner, thank you so much.

TURNER: Thank you. Thank you, Don.

LEMON: We'll be right back.

(COMMERCIAL BREAK)

[23:55:00]

LEMON (on camera): New tonight. They've agreed to mutually part ways, citing division in the community. James Whitfield was the first Black principal of Colleyville Heritage High School in Dallas-Fort Worth area until he was accused of pushing critical race theory, which he denies ever teaching.

(BEGIN VIDEO CLIP)

JAMES WHITFIELD, FORMER COLLEYVILLE HERITAGE HIGH SCHOOL PRINCIPAL: All I've done is tried to create a space where all students, regardless of their race, ethnicity, you know, their religion, sexual orientation, I've tried to create a space where all students feel safe to come to school.

(END VIDEO CLIP)

LEMON (on camera): In a joint statement, the school district and Whitfield say that the controversy impacted the education of the district students and continuing the dispute would further harm their education.

Thanks for watching. Our coverage continues.

(COMMERCIAL BREAK)