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Don Lemon Tonight

House To Vote To Censure Rep. Gosar, Strip Him Of Two Committees; Does President Joe Biden Have A Messaging Problem?; More Subpoenas Expected From 1/6 Committee; Ahmaud Arbery Murder Trial; Satellite Debris Passes Dangerously Close To International Space Station. Aired 11p-12a ET

Aired November 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: Here is the breaking news tonight. Republican Congressman Paul Gosar about to be punished for his graphic video depicting violence against Congresswoman Alexandria Ocasio-Cortez and President Joe Biden. The House will vote tomorrow to censure him and remove him from two committees.

Plus, the state resting their case in the trial of the three men accused of murdering Ahmaud Arbery, but the defense seems more focused on Black pastors in the courtroom than their own case.

And 1,500 pieces of satellite debris hurtling through space and coming dangerously close to the International Space Station. We have the very latest on why NASA officials say Russia is to blame for this.

Let's get right to Washington and the breaking news there with congressional correspondent to CNN, Jessica Dean. Jessica, thanks for joining us this evening. Walk us through this resolution and what it means for Paul Gosar, please.

JESSICA DEAN, CNN CONGRESSIONAL CORRESPONDENT: Right. So, let's just lay it out for everybody. First and foremost, this is the most serious form of punishment they can bestow on a member of the House of Representatives.

Now, it is symbolic, but it hasn't been done since 2010. The last time we saw a censure vote was for Charlie Rangel, who was a New York Democrat, for multiple ethics violation. So, this hasn't happened in a while.

It is very serious. As you mentioned, it will vote -- it is a resolution to both censure Paul Posar and also strip him from the two committees he serves on.

It's worth noting that Congresswoman Alexandria Ocasio-Cortez serves with him on one of those committees. So, we expect for that vote to happen late -- kind of mid-tomorrow afternoon, after they walk through one hour of debate evenly divided on both sides. But this also comes, Don, importantly after no, really, action from House Minority Leader Kevin McCarthy, who said that there was a closed-door meeting earlier today where Gosar, in McCarthy's words, explained his actions. McCarthy said he called him in the last week that the video came down. But McCarthy has never, you know, explicitly condemned any of it. So, now, Democrats, of course, moving forward with this censure vote tomorrow.

LEMON: Jessica, for this censure to work, the congressman has to be present in the House chamber. Explain that and what happens if he doesn't show up, please.

DEAN: Right. So, one of -- again, a unique thing about this is that he will stand in the well of the House as this resolution is read. That's part of the whole censure procedure. He is required to be there.

Now, if he didn't show up, the sergeant-at-arms could go find him and haul him onto the House floor. But House Democrats we've spoken to said they're kind of underscoring that as very unlikely to happen. But he is required to be there. So -- and again, is required to stand there as they read this resolution to him.

Back in 2010, we heard from Rangel for about one minute after the vote. We'll see if that's how it transpires tomorrow.

LEMON: Most Republicans aren't expected to join Democrats on this vote, correct?

DEAN: That's right. We know that Liz Cheney, Congresswoman Liz Cheney and Congressman Adam Kinzinger, again, the two Republicans who sit also on the January 6 Select Committee, who are apart from the rest of their party really on so many things, they have expressed that they will be voting with the Democrats on this.

But many House Republicans that we talked to today, Don, just kind of shrugged at it. They called it more -- that it was inappropriate, that it was in really poor taste, one person said. But another congressman from Minnesota told us that at this point, they're all getting death threats almost every day on a variety of issues, which in and of itself is terrible.

But at the same time, it's worth underscoring those death threats, Don, are not coming from their fellow members of Congress who they see in the halls, who they vote next to, who they even serve on committees with. So, it's worth noting on all of that, you know, that distinction.

LEMON (on camera): All right. Jessica, thank you. I appreciate the reporting.

Joining me now, CNN political commentators Ana Navarro and Scott Jennings. Hello to both of you. Good evening.

So, Scott, let's start with you because I want you to listen to what Congressman Gosar is saying about all of this. Listen to what he says -- he told his GOP colleagues. Here it is.

(BEGIN VIDEO CLIP)

REP. PAUL GOSAR (R-AZ): I did not apologize. I just said this video had nothing to do with harming anybody. It's exactly what you're talking about. It's an anime. We were trying to reach out to the newer generation that likes this anime, these cartoons fabricated in Japanese likeness, to actually tell them what's harmful in this bill that they're missing.

(END VIDEO CLIP)

[23:04:59]

LEMON (on camera): So, first, I mean, he should apologize for his threats. And second, we're not playing the video because it's really despicable. It does not explain policy. Is he -- what is he doing here? Who is he trying to fool here? That's not anything anybody said.

SCOTT JENNINGS, CNN POLITICAL COMMENTATOR, FORMER SPECIAL ASSISTANT TO PRESIDNET TO PRESIDENT GEORGE W. BUSH: Well, he's not trying to fool anybody. He is trying to please, you know, the people that he thinks are his core supporters and he's kind of running the Donald Trump playbook of the Republican Party these days, which is never apologize for anything, defend everything, die on every hill, even when you've done something enormously stupid. That is what happened here.

There are a lot of jobs in America where you can't tweet stupid crap because you'll get in trouble. And this happens to be one of them, United States Congress. He is going to get in trouble for tweeting stupid, hurtful crap.

Now, his constituents back home may or may not punish him for this. In the long run, he is going to get take off his committees, including the Natural Resources Committee, which I think is actually pretty important to his home state. So, we'll see if they take notice of that.

But he is going to get his hands slapped tomorrow. He'll run out and say the liberals are attacking me and trying to raise money off of it. That's how the wheel turns these days, I guess.

But the reality is the House Republican Conference itself has in the last few years suffered violent attacks at the congressional baseball game practice shooting. We all remember what happened that day.

And so, these members of Congress, the truth is, are constantly under security threat. Most of them do not have security. Only the leadership has security. And I do think they need to take special care not to be inciting this kind of stuff.

So, he is going to get punished. And when you're trying to explain, you're trying to reach out to younger voters, to me, this doesn't cut it.

LEMON: Yeah. They should know better considering what's happened to members of Congress.

Ana, Republican Congressman Adam Kinzinger says, failure to hold Gosar accountable -- quote -- "will take us one step closer to this fantasized violence becoming real." But Ana, isn't this already real for a lot of Republicans out there? I mean, just look at what happened on January 6.

ANA NAVARRO, CNN POLITICAL COMMENTATOR: And that's precisely why it's so important to censure him. It's so important to follow through with this. You know, Don, I was looking at the video of when Charlie Rangel got censured 10 years ago. And the person holding the gavel was Nancy Pelosi. So, she was censuring one of her own.

And I think this is an occasion where we shouldn't be Republicans or Democrats, Trumpists or non-Trumpists. This is about decency.

I remember when Kathy Griffin, a comedian, tweeted out a joke. What she said was a joke that was thought to be in very bad taste. She got put through the wringer by the U.S. Secret Service. She lost many jobs. She had to apologize. She went through hell. I would suggest that we cannot hold a member of Congress to a lower standard than we hold Kathy Griffin, a comedian.

And, you know, Scott has school-age children. He knows very well that if one of his children tweeted this out about one of their classmates, Scott would be called in to the office. The child would be expelled or suspended. There would be psychologist called, maybe police. You and I couldn't do this working for CNN.

So, there needs to be an equal playing field and we cannot lower the bar. There needs to be some accountability and some decency because there is real danger. As Scott brought up, Congressman Scalise, January 6, these death threats that people are getting on their congressional phone, it is not acceptable. Anything that they can do by themselves to lower the temperature, they must do. It's a basic form of behavior.

LEMON: Well, let's talk about republican leadership, Scott. McCarthy is making excuses for Gosar. He said Gosar didn't see the video before he tweeted it. Does he get that this looks like what this looks like or -- I mean, that he's saying it's okay for Gosar to do? Does he understand what he did?

JENNINGS: Well, I think his argument is that he talked to him and sort of internally chastised him and got Gosar to, you know, sort of explain it to the conference. I mean --

LEMON: You heard it in the interview, Scott. McCarthy is saying one thing. Gosar is saying the exact opposite of what McCarthy said. But go on. Sorry.

JENNINGS: Of course. And so, you know, McCarthy again finds himself in a position of having to deal with one of his members. You've got the public outrage over something that happened, and then you've got the internal dynamics where there are going to be several of Kevin McCarthy's members who want him to die on every hill. I mean, that's really the strategy. We have to die on every hill. Even if the hill is a stupid thing, even if it's a bad thing, even if it's the wrong thing, we have to die on it because that's what our people expect us to do. We have to every battle. We have to die on every hill. We have to defend everyone to the last no matter what.

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LEMON: What do you think of that strategy, Scott?

JENNINGS: All the consequences be damned. And that is the strategy and that is how he sees himself getting to the speakership. I mean -- by the way, while this is going on today, you have Marjorie Taylor Greene who is assailing Leader McCarthy for not being strong enough for punishing -- for failing to punish the 13 members of the House Republican Conference who voted for the infrastructure bill.

So, he is constantly playing whack-a-mole with this part of his conference and trying not to anger them to maintain their support ahead of what he hopes to be a vote for his speakership.

NAVARRO: But Scott, you just brought up Marjorie Taylor Greene. It was after days and days of pressure. But he did, McCarthy did condemn her statements, the anti-Semitic statements she made comparing the holocaust to vaccination and the yellow star.

It shouldn't be because it targets an important constituency and donor group of the Republican Party. It should be because it is the right thing to do for a speaker. Speaker means or minority leader in this case means showing leadership and being able to set a tone. And McCarthy needs to be able to do that.

You know, Paul Gosar's siblings admonish with more energy than he does.

LEMON: Yeah, we had one on last week.

NAVARRO: Of course, they know him.

LEMON (on camera): Yeah. Thank you. We'll continue this conversation. It's not over yet. I appreciate both of you joining us. I'll see you soon.

So, President Biden is in New Hampshire today selling the $1.2 trillion infrastructure package, making his pitch for a rundown bridge to drive home. What the new law will offer has -- what the new law has to offer, I should say. Here it is. Listen to this.

(BEGIN VIDEO CLIP)

JOE BIDEN, PRESIDENT OF THE UNITED STATES OF AMERICA: This may not seem like a big bridge but it saves lives and solves problems. Let me tell you why. Businesses depend on it, like the local propane company or the sand and gravel company or the logging trucks. The public services depend on it. School buses, wastewater trucks cross it every day. This is essential to Woodstock Fire Station about a quarter mile away. Without this bridge, as I said earlier, it's a 10-mile detour just to get to the other side.

(END VIDEO CLIP)

LEMON (on camera): As Biden crosses the country selling the new law, his approval rating is in sharp decline. CNN Poll of Polls has Biden's approval at 45%.

So, let's discuss this now. Stuart Stevens is here. Stuart is the former chief strategist for the Romney presidential campaign. Stuart, always a pleasure. Good to see you.

STUART STEVENS, FORMER CHIEF STRATEGIST, ROMNEY PRESIDENTIAL CAMPAIGN: Good to see you, man.

LEMON: So, let's talk about what the facts here. This infrastructure package is historic. It is $1.2 trillion for everything from child care to housing. Is the White House doing a good enough job of selling this given how low Biden's approval rating is?

STEVENS: I think they've only had a day to sell it. You know, when you buy a car, what you hate is paying for it, the sticker shock. What you enjoy is driving it around. So, they've only been driving this car around for a day.

You know, when I read about what the White House is trying to do, coordinating all these different elements of the government to go out and sell this, I think it's going to be possible. I think it will work.

I think one of the more telling things is how many Republicans who voted against it are already starting to brag about what their states are going to get and their districts are going to get, which shows that, you know, people like when you spend money and buy stuff that they care about. Biden is right, people care about stuff like bridges. It affects people's lives.

LEMON: Let's talk about the messaging here and the strategy, okay? Once the infrastructure deal passed, the White House sell the bipartisan signing of the bill. But it happened during the closing arguments in the Rittenhouse trial. A lot of folks are live for the closing arguments and they had to sort of switch back and forth, whatever.

Biden's speech today was around 3:00 in the afternoon. Do they need to rethink their whole messaging strategy? At 3:00 in the afternoon, people are at work. They're not paying attention. By the time -- maybe they want to get it for the evening news. But it's certainly not fresh in the places where people are talking and having these conversations about what the president is actually doing.

STEVENS: You know, there is a reason that Nike used that swoosh thing more than once. And, you know, McDonald's seems to be hung up on those golden arches. Repetition is everything in advertising. What would be a disaster is if Democrats, if the White House did this for a week or two and moved on to something else. You got to dig the ditch you're going to die in a lot of times in politics. This is a very big deal, $1.5 trillion. That's a lot of money. They've got to just keep at this. And it's not going to work right away. It never does. But you keep repeating it and you keep pointing out and you keep using different examples. And ultimately, you know, politics usually comes down to a game of small numbers.

[23:14:59]

And being able to change five percent here could make a huge difference in whether or not Democrats can keep the House in 2022.

LEMON: Yeah. Look, if you look at the former administration, it did pass COVID relief during the height of the virus. But other than that, did Trump pass anything this historic and bipartisan?

STEVENS: Lord, no. I mean, look how this kills me about this, man. How many times did we have infrastructure week for the Republicans? It became like a national joke. If you were a kid who was born during the first republican infrastructure week, which never really happened, I mean, you're heading to the first grade now.

So, Democrats should not be shy about bragging on the fact that it took them less than a year of a new president's term to do what the last president couldn't do in four years of his term. I mean, that's sort of what government ultimately should be about. It should be about like getting stuff done and they did it with a party that for the most part believes that the president of the United States is illegal, which we've never had before.

So, I mean, that just magnifies the difficulty of doing this. So, look, I'm kind of big on the Biden folks. I think they ran a really smart campaign. I think they're not people who are prone to panic. So, I think they'll get about this and I hope they stick with it and my bet is they will.

LEMON: I understand this, but this is just about strategy and messaging and what is and taking advantage of the bully pulpit. That's all this is about. It is not disrespect for the president. Everyone has respect for -- should have respect for office of the presidency. It's just the strategy, selling the message, when they're doing it. All of those things do matter.

Let's look forward, though, to the midterms. The GOP is in full-on assault on voting rights. Nineteen states passing 33 laws. That's going to make it harder to vote. Republicans are also redrawing districts to gain more congressional seats. This is the next battlefront for our democracy, the ability and the right to vote. Do you think Americans even realize what's happening?

STEVENS: Absolutely not. And that's how autocrats win. If you look at the history of how democracies fade into autocracies, it's usually because those on the democratic side don't think it can happen. And let me tell you, these folks on the other side, they really have a different vision of America. A lot of this is about race. I mean, ultimately, the Republican Party had a choice over the last 50 years, whether or not they were going to do the hard work necessary to appeal to more non-white voters or whether or not they were going to sort of become comfortable being a white grievance party. And it is an extraordinary tragedy that they have gone the latter route. Republican Party is almost officially a white grievance party now.

And the way that you can -- only way you can win with that in America that's changing the way America is changing is to make it harder for people who are predominantly non-white to vote. I mean, it's really not very complicated. They're pretty open about it.

After the election, you had Cruz and all these other people went out there and try to decertify predominantly African-American voters. They passed these laws in all these states that never would have been passed if Donald Trump had won. They're not really -- just listen to them. Pay attention. They're not really subtle about this.

I mean, they're out there trying to change democracy in a way. If we allow it to happen, I think there is a good chance that the 2024 election will be the last election that is recognizable as something that we've known all our lifetime.

LEMON: Stuart Stevens, always a pleasure. Thank you very much.

STEVENS: Thank you, Don.

LEMON (on camera): More subpoenas coming this week from the January 6 Committee, but what about the members of team Trump who have been subpoenaed and refused to appear?

(BEGIN VIDEO CLIP)

REP. ZOE LOFGREN (D-CA): By the way, Mr. Meadows, I sure hope he does come in, because the questions that we have to ask him are important.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

[23:20:00]

LEMON: The January 6 Select Committee is laser-focused on Trump White House Chief of Staff Mark Meadows, and they are giving Meadows one more chance to comply with their request. After that, a potential contempt charge.

Joining me now is Olivia Troye, a former Homeland Security advisor to Vice President Pence, and former federal prosecutor Kim Wehle, the author of the book "How to Read the Constitution and Why." So glad to have both of you on. Good evening.

Kim, Meadows is really critical in all of this and there is the committee's intense interest in Meadows's private cell phone use on January 6. So, talk to me about the importance of these communications. What can the committee learn from all of this?

KIM WEHLE, FORMER FEDERAL PROSECUTOR, PROFESSOR, AUTHOR: Well, the extent to which Mark Meadows communicated with Donald Trump about the events that unfolded on January 6 is something, of course, that the committee wants to know to determine what the role was of all of those White House actors.

We're seeing this narrative build that had started in December with a White House meeting, and then there was, of course, the Willard hotel environment where they were speaking on a regular basis prior to January 6.

The problem with the contempt issue with Mark Meadows, of course, is that he was in the White House and close to the president. And so that is a stronger claim of executive privilege than Steve Bannon who was a private citizen on January 5th and 6th. And I think that's why they're treading a little more lightly on this one.

I know Adam Schiff was on Anderson Cooper earlier and said, they met today but haven't decided.

[23:24:58]

I expect that they will move forward, but it's a little more complicated, and I know they don't want any failures in this regard.

LEMON: Olivia, in Jonathan Karl's new book, we learned how Mark Meadows emailed Pence's top aide, a memo from Trump lawyer, Jenna Ellis, that detailed how Pence could overturn the election. The committee may not get the email from Meadows, but what about that Pence's aide?

OLIVIA TROYE, DIRECTOR OF REPUBLICAN ACCOUNTABILITY PROJECT, FORMER SENIOR AIDE OF WHITE HOUSE CORONAVIRUS TASK FORCE: Yeah, that's exactly what I would be looking at. I would be sort of working with the Pence team on this and really working with that circle, especially the fact that they were -- their lives were in danger that day. This team faced that directly head on. They lived that day. They lived the trauma of that day, I would say.

And so, I would certainly seek out some of the staff to figure out what exactly happened here. And to be honest with you, I would be -- I know she was subpoenaed, but I would be looking at Mark Meadows's aide, Cassidy, who was inseparable. I worked with these people. She was by his side every single day. If Mark Meadows isn't going to cooperate, one of these people in his inner circle knows the answer to this.

LEMON (on camera): You know, Kim, you mentioned Steve Bannon. Steve Bannon's attorney, Schoen, was -- Schoen was on CNN this morning and it seems like he made a pretty big concession about Bannon's executive privilege claims. Watch this.

(BEGIN VIDEO CLIP)

DAVID SCHOEN, STEVE BANNON'S ATTORNEY: There are certainly conversations -- if you're talking about conversations outside of the executive branch, then clearly those are not covered by executive privilege. Here is the problem. This comes up regularly when privilege is an issue in depositions.

Here, Mr. Bannon -- there could be questions asked that have to do with privileged areas and not privileged areas. So, if he were to show up and just start asking questions without a representative of the privilege holder present, privilege could be violated.

(END VIDEO CLIP)

LEMON (on camera): Okay. So, it all comes back to me now, right, that I've seen him speaking. But you mentioned -- you said that Mark Meadows probably has a better claim at executive privilege than Steve Bannon. So, seems like he is saying so because some things might be privileged and they really may not be. He can't talk about anything. Do you understand what I'm saying? What kind of argument is that?

WEHLE: Well, it just defies basic attorney protocol on how these things go and this is a myth floating out there. There is no blanket privilege "I don't need to show up."

So, for attorney-client or sort of a more exotic presidential or executive privilege, the protocol is that you produce the witness, the lawyer sits there in a deposition or interview -- actually, can't go into the grand jury, but they sit there, and you instruct the witness that you pause before answering so the lawyer has the opportunity to object.

So, if the question is, what did you have, Mr. President, for lunch, if the discussion was around lunch, there is no basis for Mr. Bannon or Mr. Meadows to not actually answer that question. If it was, what was the president's thinking about something relating to presidential business, then the lawyer would object and say -- instruct the witness to not answer, and then that question goes to the court.

Sometimes, if it's a written document, you create what's called a privilege log where you sort kind of explain specific terms what the documents are about and the judge will decide. Listen, is the privilege valid, is the privilege not valid?

The irony here, I think, with Steve Bannon's argument is that essentially, they're setting it up kind of to conform to the big lie, that there are somehow two presidents here and that they're dueling president around executive privilege. The Constitution under Article Two establishes a presidency. That means one, you get one at a time, and right now it's Joe Biden.

LEMON: Olivia, what is -- you know, as we have been watching, you know, people defy subpoenas to say, I'm not going to show up, not even bothering, claiming executive privilege when they don't. Does anything matter anymore? It seems -- most -- everyday people cannot defy a subpoena and say, I'm just not going to court. Does anything matter for our lawmakers anymore, people involved in government?

TROYE: Yeah, it's a tough thing to watch and it's depressing to see this happening in our country on a daily basis, especially when we see the threats on the rise and everything that's happening here in Congress.

I will say this. This is a classic, you know, page out of the Trump book. They used the judicial system throughout his entire presidency to stall things when they faced litigation and they try to push agendas. They used the court system to back them on it and Trump continues to do that still today, even after his presidency has ended.

So, I think, you know, this executive privilege issue, case in point, they used it as a cloak. They use it as a cloak of their own privilege. And it's a shame to watch these people act with such a lack of integrity and just plain disregard for doing the right thing when this is such a critical moment for our country.

[23:30:06]

But I don't expect anything to change. My greatest fear is that they stall this and they'll drain the political clock and they'll wait for this to potentially go to the Supreme Court and that will truly test, I guess, the integrity of the court and what this means when our democracy is at stake right now.

LEMON: Yeah. Olivia, Kim, thank you very much. Appreciate it. The state resting its case in the trial of three men accused of murdering Ahmaud Arbery. The defense starts tomorrow. But one of the lawyers can't get past the Black pastors in the courtroom.

Plus, 1,500 pieces of debris hurtling through space at 17,000 miles an hour after Russia blows up a satellite. Stay with us.

(COMMERCIAL BREAK)

[23:35:00]

LEMON (on camera): The prosecution resting its case in the trial of the three white men charged with killing Ahmaud Arbery, a 25-year-old unarmed Black man out jogging. The final witness performed the autopsy on Arbery providing graphic testimony about the gunshot wounds that took his life.

CNN's Ryan Young has the story now.

(BEGIN VIDEOTAPE)

LINDA DUNIKOSKI, PROSECUTOR: Your honor, at this time, the state rests.

RYAN YOUNG, CNN NATIONAL CORRESPONDENT: And with that, the state rested their presentation of evidence in the Ahmaud Arbery murder trial late this afternoon. Defense Attorney Kevin Gough previously reserved the right to delay his opening arguments and is expected to deliver them starting tomorrow.

DUNIKOSKI: And what was his cause of death?

KEVIN GOUGH, DEFENSE ATTORNEY: His cause of death was multiple shotgun wounds. YOUNG (voice-over): After eight days, the last of the state's 23 witnesses took the stand today, including the forensic pathologist who conducted a 25-year-old jogger's autopsy.

Arbery was shot and killed after he was chased and got into a confrontation in a Brunswick neighborhood with three white men: Travis McMichael, his father Gregory McMichael, and William Bryan back in February 2020. Disturbing x-ray images of Arbery's body were shown while Dr. Edmund Donoghue described the multiple injuries he sustained.

EDMUND DONOGHUE, MEDICAL EXAMINER: You see shotgun pellets on the lower portion of the chest. That's the right lateral chest, the right side of the chest. You also see shotgun pellets in the right chest and left chest and shoulder injury, his shoulder area.

DUNIKOSKI: Did it break ribs five through 10?

DONOGHUE: Yes.

DUNIKOSKI: All right. So, all of the ribs over here got broken, five through 10?

DONOGHUE: Yes.

DUNIKOSKI: What happens when you break all of these ribs that are on the right lateral side?

DONOGHUE: Well, it begins difficult and painful to breathe. And also, there is -- the intercoastal arteries run on the lower edge of those ribs, so you would bleed into the chest cavity.

YOUNG (voice-over): Donoghue also testified there was nothing that could be done to save Arbery's life once the first shot to his chest was fired.

DUNIKOSKI: Was there anything EMS or officers could have done on the scene to save his life from the force of the shot?

DONOGHUE: Well, they could put an occlusive dressing on the large defect, but you would still have the exit defects in the back of the chest, and they couldn't do anything about the bleeding as long as the heart was bleeding.

DUNIKOSKI: In other words, is there anything they could've done on scene to save his life?

DONOGHUE: No.

YOUNG (voice-over): The prosecution questioned the doctor about some plant-like material found in one of Arbery's wounds, trying to illustrate how hard they said Arbery fought in those last moments.

DONOGHUE: It leads me to believe that it somehow had gotten into the barrel of the shotgun possibly while they were struggling and maybe pointed it down into the ground and came up with this botanical material. This is what is called the flight or fight reaction. When you run up, when you run into a situation that is stressful or that you are afraid of or is going to cause anxiety, the brain will correlate a flight or fight response.

YOUNG (voice-over): But the defense took issue with that.

BOB RUBIN, DEFENSE ATTORNEY FOR TRAVIS MCMICHAEL: I believe you testified on direct examination that someone in the fight or flight mode, when they can no longer flee, can fight.

DONOGHUE: They can, yes.

RUBIN: You didn't see any evidence that Mr. Arbery could no longer flee, right?

DONOGHUE: Well, no, I didn't.

RUBIN: So, there was nothing physically preventing him from continuing to run, right?

DONOGHUE: No.

RUBIN: You have no idea what he was afraid of at that point in time, correct?

DONOGHUE: Well, there was a man holding a shotgun.

RUBIN: Right. So, could have been afraid of being shot.

DONOGHUE: And there was a man following him in a pick-up truck.

RUBIN: Could have been afraid of being caught. Do you know if Mr. Arbery was afraid of being caught?

DONOGHUE: I don't.

RUBIN: Right. You don't know what you don't know.

YOUNG (voice-over): Today's graphic testimony of Arbery's last moments was overwhelming for the Arbery family.

UNKNOWN: I wouldn't put that on nobody's family. You look at your kid laid all blown apart.

YOUNG (voice-over): Earlier in the day, defense Attorney Kevin Gough told the court he filed a motion asking the record reflect who was sitting in the public gallery during the trial.

[23:39:59]

It comes one day after he took issue with civil rights icon Reverend Jesse Jackson's presence in court with the Arbery family and days after a similar appearance from Reverend Al Sharpton.

GOUGH: This morning, we did file a motion to prohibit any further conduct that may intimidate or influence jurors that otherwise interfere with a fair trial. It raises the same issues perhaps with more authority than we raised previously.

YOUNG (voice-over): Judge Timothy Walmsley denied the motion before adjourning court for the day.

Ryan Young, CNN, Brunswick, Georgia.

(END VIDEOTAPE)

LEMON: All right. Thanks to Ryan Young for that. Criminal Defense Attorney Page Pate is here. How did the state do in their case and what exactly is Defense Attorney Kevin Gough trying to do with all of these comments about Black pastors? We will talk about that next.

(COMMERCIAL BREAK)

[23:45:00]

LEMON: The defense about to start their case in the trial of the three white men accused of murdering Ahmaud Arbery. There is so much to discuss now with Georgia Criminal Defense Attorney Page Pate, the perfect person to talk about this. He knows the law in Georgia and how the court system works. Good evening to you, sir. Good to see you.

PAGE PATE, CRIMINAL DEFENSE ATTORNEY: Good evening, Don.

LEMON: So, the state wrapping their case against the men who killed Ahmaud Arbery. Twenty-three witnesses later. How did they do?

PATE: Don, I think they did well. I think the prosecution did what it had to do. Obviously, they focused on the video evidence, the video of the actual shooting of Ahmaud Arbery, but also the body cam videos of what these defendants said right after the incident occurred.

They also brought into evidence, even though they didn't have to, video surveillance evidence of Ahmaud Arbery being in the neighborhood before the day he was shot. They were simply trying to counter what they expect the defense is going to say, is that Ahmaud Arbery was breaking into homes, he was committing crimes in the neighborhood.

But what the videos actually show is a young man who is jogging around, walks into a house under construction, does not steal anything, does not damage anything, and then he walks back out.

So, I think the prosecution was effective in both proving their case and also disproving what they expect the defense is going to try to do perhaps over the next few days.

LEMON: What was interesting to me, Page, what you said was there were -- there were no calls or anything. No one reported anybody stealing anything in the neighborhood, right? No break-ins or anything like that?

PATE: Well, that's certainly true for Ahmaud Arbery. I think you may hear, though, from the defense there were some calls. Travis McMichael said that he had a gun stolen out of his pick-up truck at some point maybe a week prior to this. No evidence that it was Ahmaud Arbery. He didn't even believe it was Ahmaud Arbery. But there were some evidences of calls about minor break-ins. But this is Satilla Shores. This neighborhood is not a crime-ridden neighborhood.

LEMON: I wasn't finished with the question, because when I heard the defense saying, well, he was running because -- was he possibly running because he was guilty, right? That he was guilty -- I must say, guilty of what? That's where I was going with the question. If they didn't find him that he -- you know, any proof that he stole anything. Do you know what I'm saying?

PATE: Yeah, I absolutely know what you're saying. That's why I think citizen's arrest is going to be hard for the defense to prove here. Georgia law used to allow somebody to go chase someone down, hold them for the police if they saw them commit a crime or had direct knowledge that they had committed a serious felony offense. None of that is present in this case.

Even if there is some argument this may have been criminal trespass, that Ahmaud Arbery was on private property, the McMichaels didn't see him on private property and they certainly had no evidence he had committed a felony offense that would authorize them to chase him down and then arguably get into a scuffle and then shoot him. It's going to be a stretch for the offense.

LEMON: So, the defense attorney, Kevin Gough, is continuing his push to have the court keep a record of everyone attending the trial. Yestersay, he complained about Reverend Jesse Jackson. Last week, he was bothered by Reverend Al Sharpton. What is he trying to accomplish here, because even the judge, you know, took in a task, saying, you know, what are you doing here? It looks like you have ulterior motives.

PATE: Yeah, Don. This judge has been incredibly patient with this argument. I'm been in front of this judge before. He is known as a patient judge, a fair judge. But this motion has absolutely no legal merit to it. You cannot prevent someone from coming into a public courtroom if they're not making a disruption.

Now, it would be different if Reverent Jackson came in there and decided to make a speech or interrupt the witnesses or call out somebody's name. But that hasn't happened at all. He simply sat with the family just like Reverend Sharpton and they are absolutely allowed to do that.

So, the idea that the judge is going to bar Black pastors from the courtroom, it's ridiculous. So, I don't understand the point of making that motion and, of course, it's going to have the opposite effect because pastors are already showing up in Brunswick. There are more expected later this week. So, whatever he was trying to accomplish, he's not done it.

LEMON: Page, thank you so much. I'll see you soon.

PATE: Thank you, Don.

[23:49:59] LEMON: Astronauts taking cover fears of militarization of space and potentially hundreds of thousands of pieces of debris that could disrupt your internet, phone service, GPS, wow, and a whole lot more, after Russia blows up a satellite in a missile test today. More next.

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LEMON: So, take this. Imagine 1,500 pieces of space debris hurdling above earth at 17,000 miles per hour after Russia blew up a defunct satellite.

[23:55:02]

Imagine crew members on the International Space Station scrambling for cover. It sounds like something out of the movie "Gravity," right? Well, it turns out that actually happened after Russia carried out an anti-satellite missile test on Monday.

Here's what Houston Mission Control had to tell the astronauts on the ISS.

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UNKNOWN (voice-over): Our next pass through the debris we estimate to be around 0706. The information we have right now indicates that we will need to activate Dragon Safe Haven and close centerline hatches for the next two crossings.

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LEMON (on camera): Now, NASA is scolding Russia's space agency, expressing dismay over the danger astronauts and cosmonauts continue to face on the ISS.

Space is becoming an increasingly crowded place, full of both junk and muscle-flexing by world powers. There's more than 9,600 tons of debris orbiting our planet. And while it may be hundreds of miles away, it can put lives at risk and impact many of our services that we rely on here on earth like telecommunications. And dangerous moves like that like what Russia did can make things a whole lot worse.

So glad you can join us. Thanks for watching, everyone. Our coverage continues.

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