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Don Lemon Tonight

Trump Denied Again In Executive Privilege Case; Sixteen New Jan. 6 Subpoenas Issued This Week; Kyle Rittenhouse Testifies In His Own Defense In Homicide Trial; Detective Testifies Defendant Didn't Know Whether Arbery Had Committed Crime Prior To Pursuit; Radio Host On Hunger Strike Until Voting Rights Passes; Ex-MMA Fighter Scott Fairlamb Sentenced In Capitol Riot. Aired 11p-12a ET

Aired November 10, 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 is the breaking news. Another big setback tonight for the former president and his attempt to keep his administration's records from going to the January 6th Committee.

A federal judge again denying his request to stop the transfer of documents. Judge Tanya Chutkan is the same judge who issued a historic ruling only last night, denying Trump's claim of executive privilege. And tonight, instructing his lawyers to argue their case before an appellate court.

The National Archives can begin to turning over the records to the January 6 Committee beginning Friday unless the former president can get an emergency court order stopping the transfer.

Let's discuss now with CNN senior legal affairs correspondent Paula Reid and former U.S. Harry Litman. Good evening to both of you. Paula, another major blow for the former president. What can you tell us?

PAULA REID, CNN SENIOR LEGAL AFFAIRS CORRESPONDENT: Don, this is the second time in 24 hours that Judge Tanya Chutkan has ruled against former President Trump in his ongoing quest to keep secret some of his White House records from the House Select Committee investigating January 6.

Last night, Chutkan ruled that as a former president, Trump does not have the power to keep his record secret if the current president wants them released.

Now, after that decision, Trump's legal team asked the same judge by the former president some time to delay the handing over of these documents which is expected to begin on Friday. Not surprisingly, Judge Chutkan denied that, but we know, as you said, Trump is expected to appeal her overall decision.

He now has the opportunity not only to appeal it but to ask the appellate court to put the pause on the handing over of these documents. It is the National Archives that actually has his documents. They inherited them after he left office. Right now, they are scheduled to begin handing over these documents on Friday to the House Select Committee investigating January 6 unless, of course, a court orders a delay.

LEMON: So, Trump's next move, he has got -- he had to ask this judge, right, and that was part of the protocol. And now, he is going to have to make his appeal to the appellate court. So, now what, we wait and see?

REID: Yes, it is going to be really interesting. This case raises a lot of big novel questions about the powers of former presidents to protect their own records, especially when the sitting president, who really has the power to protect the records of past presidents, wants them released.

It is a really interesting constitutional case that could easily makes its way all the way to the Supreme Court because it presents a question for which there really is no answer. Now, will the committee ever see this evidence? It is unclear, Don. We will see what the courts decide ultimately, what the final decision is.

But the bigger issue, the bigger legal thing we are all waiting for here is what the Justice Department is going to do with Steve Bannon, because we know that without the Justice Department moving forward on that contempt referral that they received from the House about 3 weeks ago, it is unlikely that investigators are going to get any witnesses to provide them with additional evidence whether they are really going to be able to talk to the people that they truly need to talk to get this work done.

LEMON: All right, Paula.

Harry, first question to you is this judge, Tanya Chutkan, writing this. Nothing in the court's November 9, 2021 order or this order triggers the harm he alleges because the archivist will not submit the requested records to the Select Committee until November 12, 2021, and the plaintiff can seek appellate relief in the interim. This court will not effectively ignore its own reasoning in denying injunctive relief in the first place to grant injunctive relief now.

Pretty clear, a smackdown here. She is not going to help.

HARRY LITMAN, FORMER U.S. ATTORNEY, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL: What part of no don't you understand is what she is saying to Trump. I told you this yesterday. He said he filed a renewed emergency motion. Clock is ticking and he is sweating. It could be as soon as 40 hours that it has to be turned over.

Now, he will, of course, go to the Court of Appeals. But he said, just give me the time, just freeze the line backers until I go there. She said, no, there is nothing new here.

I said yesterday, you are not likely to prevail on the merits. That is the linchpin factor. Things have not changed since yesterday. No means no. Go to the Court of Appeals.

LEMON: How quickly could -- you said 40 hours or so, but how quickly could this D.C. Court of Appeals act?

LITMAN: Immediately.

[23:04:56]

So, they could act and they will be asked to act right away at least to have a sort of temporary stage just to consider it, to not have -- there is the first tranche of documents due to be turned over in about 40 hours, Friday afternoon. They include visitor logs, call logs, stuff from Mark Meadows.

They will say -- will Trump's lawyers -- just hold things off so you can at least hear our claim. Courts of Appeals don't have to do that, but I expect here that they will at least to do it so they can consider it.

On the other hand, after Chutkan has moved so quickly, I also expect that the Court of Appeals themselves will be expeditious. It is a majority democratic court and I don't think they are going to permit Trump to drag this out for months.

LEMON: Okay. So, you said 40 hours, and we are talking about 40 pages the archive is going to turn over related to January 6, that's on Friday, including White House visitors and call logs and three handwritten memos from ex-White House Chief of Staff Mark Meadows. How important are these records to the investigation?

LITMAN: Pretty big. I mean, well, visitor and call logs are standard, but, you know, we don't really have that information otherwise, and Meadows seems increasingly at the center. This is from the other witnesses.

You know, the big game that is going on here, Don, is sort of a carrot and stick. They've got 150 people who are cooperating with them unless they have this fate. What they are telling them, so say news reports anyway, is that Meadows really figures integrally.

So, they get his handwritten notes. That could be a pretty good first harvest. Of course, as you say, 40 pages of some 770, and those additional ones are due to be turned over on November 26th.

LEMON: If this ends up, Harry, at the Supreme Court, if you think it's going to, but if it does, do you think they will even take this case on?

LITMAN: You know, I think she is right. But on the other hand, your correspondent is right that there are some not very well decided issues. I think Chutkan got it exactly right that when push comes to shove, Biden has to decide. But before knowing that, there was Supreme Court precedent to the contrary.

So, it is sort of a toss-up. They know that it means necessarily delaying things for a long time. So, there would be a fight about it on the court. But it is not an easy no. There are some tricky issues here that they could bite on.

LEMON: All right. So good to see you, Harry Litman. Thank you, sir.

LITMAN: Likewise. Good to see you. Thank you.

LEMON: So, joining me now to discuss, Democratic Congressman Eric Swalwell. Congressman, I really appreciate you joining us, especially now that we have this developing news.

The judge has once again denied Trump. She is pointing him to an appeals court. Trump's team, of course, has already started the appeal process. Are you confident that the committee is going to get these records come Friday?

REP. ERIC SWALWELL (D-CA): Yes, Don. Of course, they should. As the judge said, he is not king, presidents are not king, he is not even president, and these laws were meant to protect sitting presidents.

The real question though is, why is he fighting so hard in the courts, spending so much money, to keep the records from being public? Well, we know the answer. It is because it shows that he is guilty as hell at inciting, inflating, and aiming a mob at the Capitol that day.

LEMON: CNN has exclusive reporting here. We are learning that the January 6 Committee wants to hear from at least five members of former Vice President Mike Pence's inner circle. The rioters were after the then vice president on the 6th, even chanting "hang Mike Pence."

Sources are telling CNN that some people close to Pence may be willing to voluntarily speak to the committee. What information do you think these staffers could provide?

SWALWELL: They will know Mike Pence's mindset as he was talking to Donald Trump that day and what Donald Trump was doing. Again, Don, this was one of the largest crimes in American history: 675 arrests, hundreds of officers injured, one lost a finger, one lost an eye, one died, five deaths by suicide. Of course, we want to know what Donald Trump's role was in this.

During the impeachment trial, we tried to get Marc Short. I directly reached out to Marc Short. We were told by his lawyers that if we tried to bring him in for the trial, he would fight us in court.

So, that is going to be the challenge. That is why it is so important for the Department of Justice to look at any one who defuses to come in under a lawful subpoena as someone who won, has a consciousness of guilt, but too should be held to the same standard you and I would be held to, which is you should end up in orange jumpsuit in a courtroom telling a judge why you are not going to cooperate.

LEMON: Okay. Let's talk more about that because House Committee is sending out more subpoenas this week. But people like Steve Bannon is still defying the subpoenas. I mean, it is putting pressure on the attorney general, Merrick Garland, to set an example and seek prosecution because I think -- I'm sure -- I don't put words in your mouth but they are possibly trying to run out the clock.

[23:10:00] Does the DOJ need to act and soon?

SWALWELL: I like that he is independent, Don. I didn't like that Donald Trump told his DOJ what to do. But I will say the facts here feel pretty clear. I will reserve judgment until he makes a decision. But we have to be a country where the role of government is to govern, not to divide, and that you do not see people thinking that they are above the rule of law.

Right now, the Republican Party, Don, is a party that is more comfortable with violence than voting and more comfortable with lawlessness than lawfulness. We need to put an end to that.

LEMON: Congressman, the midterms are less than a year away. Democrats are at real risk of losing the House. Republicans would certainly move to shut down the committee. Are you worried? You know, I mentioned the clock running out. Are you worried that the clock is going to run out before all of this work is done?

SWALWELL: No. We are moving expeditiously on the January 6 commission. We know what is at stake, that these guys -- again, they do not believe in voting, they believe in violence. So, we have to deliver. That is why we just delivered on a bipartisan infrastructure bill, bridges, roads, tunnels, rails. There is a climate project also, by the way.

And we have to deliver on paid family leave, child tax credit being expanded, making sure that seniors have in-home support services, making sure that we expand education opportunities. We are going to do all of that with the "build back better" agenda. Democrats are going to be regarded as delivering and Republicans will be regarded as irresponsibly and violently dividing.

LEMON: Since you mentioned the child family leave, I have to say you are on family leave right now. It is of utter importance to Americans. And so, I just want to put up. This is -- this issue is personal for you. You're welcoming your new son into the world, Hank.

SWALWELL: Yeah, that is right, Don. It is important for fathers, too. It is certainly important for mothers but studies have found that fathers who take parental leave, one, marriages last a lot longer, the bond with the child also is much stronger, that fatherhood is not necessarily an inherited trait, it is a developed one. And so, if you are pro-family, you would be pro-parental leave.

In our house, though, Don, we have gone from two children to three. So, the kids have taken the house. There is no filibuster here. So, we are in a real big, big trouble.

LEMON: You are the minority leader.

SWALWELL: That is right, I am the minority leader, permanently.

LEMON: Thank you, congressman. Congratulations. I really appreciate you joining us. Enjoy your family and you baby.

SWALWELL: Thanks, Don.

LEMON (on camera): Thank you. An explosive day in the Kenosha courtroom as Kyle Rittenhouse testifies in his own defense in his homicide trial.

(BEGIN VIDEO CLIP)

THOMAS BINGER, ASSISTANT DISTRICT ATTORNEY: Everybody that you shot at that night, you intended to kill, correct?

KYLE RITTENHOUSE, DEFENDANT: I didn't intend to kill them. I intended to stop the people who were attacking me.

BINGER: By killing them?

RITTENHOUSE: I did what I had to do to stop the person who was attacking me.

BINGER: By killing them?

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[23:15:00]

LEMON: Really explosive moments as Kyle Rittenhouse takes the witness stand in his homicide trial in Kenosha, Wisconsin, breaking down under questioning, claiming that he feared one of the men he fatally shot during civil unrest would have grabbed his gun and killed him if he didn't fire first.

Here is CNN's Sara Sidner.

(BEGIN VIDEOTAPE)

BRUCE SCHROEDER, WISCONSIN CIRCUIT COURT JUDGE: Is your mind clear today?

RITTENHOUSE: Yes, your honor.

SARA SIDNER, CNN NATIONAL CORRESPONDENT (voice-over): Kyle Rittenhouse took the stand in his own defense for the killing of two men and wounding of another last summer during the unrest that exploded in Kenosha, Wisconsin.

MARK RICHARDS, DEFENSE ATTORNEY (voice-over): On the night of the 24th, were you aware of anything going on in Kenosha?

RITTENHOUSE: I knew there was protest, demonstrations and riots going on in the later evening.

RICHARDS (voice-over): Okay. And how were you aware of that?

RITTENHOUSE: I saw videos on social media.

SIDNER (voice-over): The next day, his friend suggested they go to help protect businesses and they did, he testified. He said they went to the Car Source car dealership and the owners accepted their help.

RICHARDS (voice-over): Did they give you permission to be there?

RITTENHOUSE: They did.

SIDNER (voice-over): Later that night, Rittenhouse said he left the dealership and was asked by his friend to put out a fire elsewhere. That led to his first deadly shooting. When it came time to talk about it, though, Rittenhouse broke down in sobs, saying he was cornered.

RITTENHOUSE: I -- I hear somebody scream "burn in hell" and I replied with friendly, friendly, friendly to let them know, hey, I'm just here to help.

SIDNER (voice-over): He said he noticed a dumpster fire, went towards it, and was approached by two men.

RITTENHOUSE: As I was stepping forward, I believe his name is Joshua Ziminski, he steps towards me with a pistol in his hand. And as I'm walking towards it to put out the fire, I dropped the fire extinguisher and I take a step back. I looked over my shoulder and Mr. Rosenbaum was now running from my right side. I was cornered from in front of me with Mr. Ziminski and there were -- there were people right there.

SIDNER (voice-over): His sobbing prompted the judge to call for a break. Rittenhouse returned completely composed.

RITTENHOUSE: Mr. Rosenbaum was right there at the corner of the Duramax, starting to chase me. A gunshot is fired from behind me and I take a few steps and that's when I turned around.

[23:20:00]

And as I'm turning around, Mr. Rosenbaum is coming at me with his arms out in front of him. He -- I remember his hand on the barrel of my gun.

RICHARDS (voice-over): As you see him lunging at you, what do you do?

RITTENHOUSE: I shoot him.

RICHARDS (voice-over): And how many times did you shoot?

RITTENHOUSE: I believe four.

SIDNER (voice-over): Rittenhouse says he began to run.

RITTENHOUSE: People were screaming, get his ass, get his ass, get him, get him, get him.

SIDNER (voice-over): Rittenhouse then describes how and why he shot the other two men, saying he was defending his own life.

RITTENHOUSE: Mr. Huber, he is holding a skateboard like a baseball bat and he swings it down and I block it with my arm trying to prevent it from hitting me, but it still hits me in the neck. As I block it, it goes flying somewhere off in the distance.

RICHARDS (voice-over): And do you stop them?

RITTENHOUSE: No. I get lightheaded. I almost pass out and I stumble and hit the ground.

RICHARDS (voice-over): Okay.

RITTENHOUSE: I'm on my back and Mr. Huber runs up. He -- as I'm getting up, he strikes me in the neck with his skateboard a second time.

RICHARDS (voice-over): Then what happened?

RITTENHOUSE: He grabs my gun and I can feel it pulling away from me and I can feel the straps starting to come off my body.

RICHARDS (voice-over): And what do you do then?

RITTENHOUSE: I fire one shot.

RICHARDS: After you fired, striking we now know Mr. Huber, what do you do?

RITTENHOUSE: I lower my weapon and I see Mr. Grosskreutz. He lunges at me with his pistol pointed directly at my head.

RICHARDS: Did you re-rack your weapon?

RITTENHOUSE: I did not.

SIDNER (voice-over): That contradicted Gaige Grosskreutz testimony where he said Rittenhouse tried to reload his gun. Rittenhouse said he only fired at him when his life was in danger. Prosecutors then cross- examined Rittenhouse, questioning him about why he possessed a gun.

BINGER: So, you're telling us that the reason that you wanted Dominick buy you an AR-15 as opposed to a pistol -- is the only reason was because you felt you couldn't lawfully possess a pistol?

RITTENHOUSE: Correct.

BINGER: You didn't pick out the AR-15 for any other reason?

RITTENHOUSE: I thought it looked cool.

SIDNER (voice-over): The prosecution also tried to bring in evidence that Rittenhouse had said he wished he had a gun to shoot shoplifters in the days before he arrived in Kenosha.

BINGER: Then you would agree with me that you are not allowed to use deadly force to protect property, correct?

RITTENHOUSE: Yes.

BINGER: But yet you have previously indicated that you wished you had your AR-15 to protect someone's property, correct?

SIDNER (voice-over): The judge suddenly sent the jury out, then admonished the prosecutor for questions about evidence that he said he had excluded from the trial and the prosecutor's questions about Rittenhouse requesting an attorney after turning himself in to police.

SCHROEDER: Don't get brazen with me. You knew very well -- you know very well that an attorney can't go into these types of areas when the judge has already ruled without asking outside the presence of the jury to do so. So, don't give me that.

SIDNER: Abd that was just some of the tongue lashing that the judge gave the prosecution. And the defense, of course, seizing on this moment, telling the judge that because of what he heard from the prosecutor, he is going to file a motion to dismiss. The judge said he would take it under advisement.

We should also mention that, of course, the trial continued on and we heard more from Rittenhouse and we heard the prosecution go after him for inconsistencies in his testimony. We do expect that Rittenhouse is finished testifying and that his friend, who bought him that AR-15, will testify tomorrow. Don?

(END VIDEOTAPE)

LEMON (on camera): All right. Sara Sidner, thank you very much. I really appreciate it. I want to bring in now Judge Glenda Hatchett, founder of The Hatchet Firm. Judge, thank you so much. I can't wait to talk to you about this. Good evening to you.

It was an explosive day in court with Kyle Rittenhouse taking the stand. Where do you think this case is right now given all the evidence that we have seen so far and his performance on the stand?

GLENDA HATCHETT, FOUNDER, THE HATCHETT FIRM: Well, I think, first of all, we so rarely see a defendant take the stand. But Don, they didn't have a choice. The defense had to put him on the stand today. And I think that the prosecutor scored some points.

But I think that Kyle being on the stand was compelling in the sense that he came across as saying, I'm fearful, I really thought I was -- my life was in danger, and that has to be an element under Wisconsin law to really be able to establish self-defense.

Now, does that shift the burden? Of course, it doesn't. It always stays with the state and the prosecutors. But there was so much other stuff going on, as we saw in this package. I mean, the judge went ballistic today.

[23:25:02]

I mean --

LEMON: I want to talk to you about that.

HATCHETT: Okay.

LEMON: Give me a second. You said they had no choice, the defense. Why -- quickly, before we get to the judge, why didn't they have a choice?

HATCHETT: Absolutely. I am glad we are circling back to that. I think that they had to have him go on the stand and say, I feared for my life.

LEMON: Got it.

HATCHETT: I was there. He said, I was there, you know, to protect the property. You can't use deadly force to protect the property. But I think that the jury had to hear from him that he really was in fear of his life to be able to solidify a defense based on the notion of self- defense and that he somehow was justified in doing what he did.

Let's just remember, the first person, Rosenbaum, did not have a weapon. The second person had a skateboard. Now, there is another different kind of discussion about the third victim, who in fact did have a gun, and I think that that's probably the strongest argument that the prosecutors have with the victim who survived because there was a gun drawn and I think that there probably is going to be room for self-defense.

LEMON (on camera): Got it. So, let's talk about Judge Schroeder now. He admonished the prosecution multiple times today. Let's take a look at it and we'll talk.

HATCHETT: All right.

(BEGIN VIDEO CLIP)

SCHROEDER: I was astonished when you began your examination by commenting on the defendant's post-arrest silence. That's basic law. It's been basic law in this country for 40 years, 50 years. I have no idea why you would do something like that. Don't get brazen with me.

You are an experienced trial attorney and you are telling me that when the judge says, I am excluding this, you just take it upon yourself to put it in because you would think that you have found a way around it? Come on.

BINGER: I thought this is my good-faith explanation to you.

SCHROEDER: I don't believe you. There better not be another incident. I'll take the motion under advisement.

(END VIDEO CLIP)

LEMON (on camera): Okay. Look, you're a judge. Most people watching were saying, wait, what? I mean, they have never seen a judge this angry or act this way. I am not sure if it's common but -- HATCHETT: It's not.

LEMON: Was that over-the-top performance warranted based on the prosecution's performance today?

HATCHETT: I thought it was over the top, Don. Technically, the judge was right on the two points. He had already ruled in a pretrial order that that evidence about his comments in wanting to come and do something before this incident should be excluded.

But the basic law is, and this is basic, everybody knows this, and for lay people, let me just explain to you that the person has a constitutional right to be silent. I mean, they do that in Miranda warnings. It's very, very clear.

And so, for the prosecutor to have commented on that was not correct. But I thought that the judge's reaction was over the top. I thought it was -- I mean, we're human, I get that, and sometimes things will really just set you off. But in this situation, I thought it was extreme today. I really did.

Let me also say to you that the jury was not in the jury room when that happened. They were not in the courtroom, but they were not in the jury room. They had been moved to the library. It's my understanding the library is close to the courtroom. And there was a reporter who said that he was yards away and could hear what the judge was saying.

And so, I think with all of those kinds of things and given just the intensity and the scrutiny of this case and emotion is really what I want to say, such an emotional case, that I think the judge has to be very, very careful.

LEMON: Hey, judge, I just -- quick answer if you can because I've got so much to get to. I apologize in advance. Do you think is it possible -- I guess it's possible -- that the jury can are turned off by such actions from the judge? I am just asking.

HATCHETT: No. I think that's exactly right. And that's why I was concerned about the proximity when I understood that the jurors were moved to the library and not to a jury room. I do think that's the case. But it's also the prosecutor was really, you know, took some risks today because the motion to -- for -- to dismiss, he took under advisement for the motion for a mistrial.

LEMON: With prejudice, meaning they could never bring it back.

HATCHETT: Could never bring it back and retry it. But that's not going to happen in this case.

[23:30:00]

I would bet money on that. I just don't think that will happen. I will shorten my answer so we can cover more.

LEMON: Judge, thank you very much. We hope to have you back. We will continue to follow this. You be well. Thank you so much.

HATCHETT: I look forward to it. Great to see you. Thank you.

LEMON: You as well. Thank you, Judge Hatchett.

So, big testimony today in the trial for the murder of Ahmaud Arbery. A detective telling the court one of the defendants said that he didn't know whether Arbery had committed a crime before chasing after him.

(COMMERCIAL BREAK)

[23:35:00]

LEMON (on camera): New developments tonight in the trial of three white men accused of murdering Ahmaud Arbery, an unarmed Black man. The defense claims that they were attempting a citizen's arrest of Arbery who was out jogging when he was chased down and killed. But new testimony today is chipping away at that claim.

CNN's Martin Savidge has the story.

(BEGIN VIDEOTAPE)

UNKNOWN: -- tell the truth, the whole truth and nothing but the truth?

UNKNOWN: I do.

MARTIN SAVIDGE, CNN ANCHOR AND CORRESPONDENT (voice-over): Day four saw prosecutors continuing to try to dismantle the defense claim that the three defendants were attempting a citizen's arrest the day 25- year-old Ahmaud Arbery was killed.

On the witness stand, the detective testified when he asked Gregory McMichael if he had seen Arbery commit a crime that day, McMichael said he didn't know and that it was up to investigators to try to figure that out. Here is the detective reading McMichael's answer from a transcript.

RODERIC NOHILLY, SERGEANT, GLYNN COUNTY POLICE: That's just it. I don't know. That's what I told. I told what's her name out there. I said, listen, you might want to go knock on doors down there because this guy had just done something that he was fleeing from.

SAVIDGE (voice-over): In earlier testimony, the first officer to interview Gregory McMichael, while still on the scene, said he never once mentioned the men were attempting to apprehend Arbery.

UNKNOWN: Did he ever tell you, while you are talking to him, that he was attempting to make a citizen's arrest?

UNKNOWN: No, ma'am.

UNKNOWN: Did you ever use the word arrest?

UNKNOWN: No, ma'am.

SAVIDGE (voice-over): The last moments of Arbery's life were captured on the cell phone video taken by one of the defendants, William "Roddie" Bryan. The video shows two armed white men, father and son, Gregory and Travis McMichael, confronting Arbery as he runs down the road. Travis McMichael and Arbery struggle over Travis's shotgun. Arbery is shot three times and collapses.

Gregory McMichael's defense attorney argue that senior McMichael feared Arbery was going kill his son, Travis, if he got control of the shotgun.

FRANK HOGUE, DEFENSE ATTORNEY FOR GREGORY MCMICHAEL: If he had gotten that shotgun and there was any separation between Travis and him, I was going to cap his ass.

AL SHARPTON, REVEREND, NATIONAL ACTION NETWORK PRESIDENT: Dear God, we call you --

SAVIDGE (voice-over): Outside the courthouse during lunch recess, Arbery's family and their attorneys held a prayer vigil. The reverent, Al Sharpton, called Arbery's death a lynching of the 21st century that for a long time received little or no attention.

SHARPTON: Let's not be fooled. They never intended for these three to be in a court. Come on. Come on. The reason they are even on trial is because some of us stood with this father and mother and demanded justice.

SAVIDGE (voice-over): Back in court, the prosecution interviewed the first witness from the neighborhood where Arbery was killed. Matthew Albenze is the voice of the now widely played call to police that first reported Arbery in the neighborhood that day.

UNKNOWN (voice-over): Okay, what is he doing?

MATTHEW ALBENZE, NEIGHBOR WHO CALLED POLICE ON ARBERY (voice-over): Running down the street.

SAVIDGE (voice-over): When Albenze called police, he dialed the nonemergency number for the Glenn County Police Department, not 9-1-1, something he was asked about on the witness stand.

UNKNOWN: You didn't dial 9-1-1?

ALBENZE: No.

UNKNOWN: Why didn't you dial 9-1-1?

ALBENZE: I did not see an emergency.

SAVIDGE (voice-over): Not long after, Albenze says he heard gunshots, and when he went to the scene, he was shocked to see the person he had just reported to authorities now lying in a pool of blood in the middle of the road, and Gregory and Travis McMichael standing nearby.

(END VIDEOTAPE)

LEMON (on camera): Martin Savidge joins me now. Martin, good evening to you. The state decided to try all three men at the same time. That's making for a complicated trial, no?

SAVIDGE: Remarkably so. I mean, I've covered a lot of trials. I've never come across the trial with three defendants that are being tried at the very same time. Just the logistics inside of that courtroom, you've got of course the prosecution and normally you would have the defense. In this case, you've got the prosecution, the defense, their defense, their defense, and you got the three defendants in there at the same time.

So, say like today when the state would call a witness, that witness would likely be interviewed or asked questions four different times, first by the state and then by each member of that defense team. There are six attorneys for those three defendants.

So, when there are objections, sometimes you get one attorney jumps up or two attorneys or sometimes all three attorneys jumped up, or sometimes, one defense attorney disagrees with what the objection is on the part of another defense attorney.

And so, the judge has to say hold out a minute, the jury gets excuse, and then they try to work all that up. That happens multiple times a day and it just creates this tremendous sense of frustration in the courtroom and it shows. Don?

LEMON: Martin Savidge, appreciate the reporting, and Martin will be covering this until the end. Thank you, Martin. Appreciate it.

So, he says that he won't eat until Congress passes voting rights.

[23:40:02]

Joe Madison, there he is. He is here, not eating, and it could be a very long time until he does, sadly. We are going to talk next.

(COMMERCIAL BREAK)

LEMON: So, I want you to pay attention to this next segment. It's really, really important.

[23:45:00]

Legislation to protect voting rights especially for Black and brown Americans is stalled in the Senate by Republicans who claim it is a power grab for Democrats.

Sirius XM host Joe Madison calls that excuse bunk. And on Monday, he began a hunger strike, telling his listeners that he won't eat until the legislation is passed and signed into law. Joe Madison joins me now.

Joe, thank you, sir. This is -- you know how I feel about this issue. There is no more important issue, I believe. JOE MADISON, SIRIUS XM HOST: Thank you.

LEMON: Day three of your hunger strike. How's it going?

MADISON: Well, it's going okay. I mean, you know, this isn't my first rodeo with hunger strikes. You know, our friend, you know, the late great Dick Gregory, I've been on hunger strikes with him. But this has to be done.

You know, the first reconstruction ended in 1877. And Don, the first thing that the southern Dixiecrats went after was the vote, particularly the vote of African Americans, and all hell broke loose. There were massacres in South Carolina. Your forefathers' home state of Louisiana, they killed people, they ran them out of office because they didn't want African Americans and particularly to have the power to vote.

Well, some of us think that we're now on the verge of the end of the second reconstruction. Look what happened after the last presidential election, Don. You know, it was because, in many cases, of the African American vote that we turned a ruby red state like Georgia blue and what's the first thing they did?

LEMON: Arizona --

MADISON: They introduced --

LEMON: Yeah.

MADISON: Yes.

LEMON: I got to ask you. Let me ask you, though.

MADISON: Yeah.

LEMON: I thought --

MADISON: But they -- 400 -- yeah. I was going to say there have been 400 voter suppression laws introduced in 49 states.

LEMON: Yes.

MADISON: Four hundred laws to suppress our vote in 49 states.

LEMON: You have said --

MADISON: Stop it.

LEMON (on camera): You have said that you are willing to die for this cause and you know that there are people, as you have said, who were massacred and died fighting for this. I asked the current president, Joe Biden, at a town hall about this. We talked about protecting voting rights. Listen and I want your response. Here it is.

(BEGIN VIDEO CLIP) LEMON: Here is a thing for me. You talked about people -- this is important for people who look like me. My grandmother would sit around when I was a kid, fifth grade, had a fifth-grade education. I learned that she couldn't read when I was doing my homework. She would tell me stories about people asking her to count the number of jelly beans in the jar or the soap.

And so why is protecting the filibuster? Is that more important than protecting voting rights, especially for people who fought and died for that?

(APPLAUSE)

JOE BIDEN, PRESIDENT OF THE UNITED STATES OF AMERICA: No, it's not. I want to see the United States Congress, the United States Senate passed S 1 and S 4, the John Lewis Act, get it on my desk so I can sign it.

(END VIDEO CLIP)

LEMON (on camera): Have you reached out to the administration? Have you heard anything from them?

MADISON: Oh, they are aware of it. Absolutely. I've reached out to members of Congress. I've had members of the Senate reach out to me. I've talked to Senator Cory Booker. This morning, I had an interview with Congressman Clyburn. Now, he said on my show that this is very important. He believes that the John Lewis Voting Rights Act might pass. So, there is a lot of talk that's going on.

But look, you know, the one thing that I've learned a long time ago is that we need more than moments. This moment you had with President Biden, what we need is a movement. And that's why I'm doing it. And here is the one thing we know about history. All movements require sacrifice. Now, look, people say -- you know, my wife asked me the same question. She said -- she looked me in the eye after I went to the doctor to get a baseline of my health. She said, are you telling me -- we were in the car together, leaving the doctor's office. She said, are you telling me that you are willing to die for this cause?

LEMON: You said yes.

MADISON: And I gave her a one-word answer. Yes.

LEMON: Yeah.

MADISON: And the reality is -- the reality is if we don't stop this -- it's not about me. It is about -- I've got four children, five grandchildren, one great-grandchild. It's about them.

[23:50:00]

LEMON: Yeah.

MADISON: And I don't want in 50 years from now and when they read the history books and ask the question, well, what did pop-pop do about it? You know, what did these folks do about it? And find out that their vote has been weakened.

John Lewis made it very clear, nothing is more precious in this democracy then a vote. So, if I have to --

LEMON: We have to leave it at that.

MADISON: You know, I just -- hey, we have to do this.

LEMON: Well, you are making a very important sacrifice. You're making a very important sacrifice and it's not beyond yourself. This is really important. I appreciate what you're doing. I respect it. We're going to continue to check on you.

I have to call your wife as well to see that you're okay. You're already a thin man, naturally, I don't mean that in a derogatory way. You're already a thin man. So, I want you to be safe but I want people to pay attention. It is important to remind people of just how important this is. Thank you very much.

MADISON: I don't to thin out of votes.

LEMON: Amen.

MADISON: Thank you.

LEMON: I will see you soon. Thank you, Joe. Appreciate it. We'll be right back, everyone.

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[23:55:00]

LEMON (on camera): New tonight, the first sentencing of a rioter accused of violence against police officers during the January 6th Capitol attack. Scott Fairlamb, a New Jersey gym owner and former MMA fighter, was sentenced to 41 months in prison, that's almost three and a half years, after pleading guilty to assaulting an officer. Just watch what happened.

(BEGIN VIDEO CLIP)

UNKNOWN: Don't touch me.

UNKNOWN: Get the (bleep) out of here.

UNKNOWN: Don't touch me.

(END VIDEO CLIP)

LEMON (on camera): So, prosecutors allege that Fairlamb was one of the first rioters inside the Senate Capitol on -- the Senate side, I should say, of the Capitol during the attack. He entered less than one minute after the building was breached. He told the court today that he regrets his actions and has nothing but remorse.

Thank you for watching, everyone. Our coverage continues.

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