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Don Lemon Tonight

January 6 Committee Subpoenas Phone Records Of 100+ People, Including Former Trump Officials; Was January 6 A Rehearsal For A More Serious Coup Attempt?; WH: President Biden 'Direct And Straightforward' With Putin On Ukraine; Study: Omicron Variant Partly Evades Pfizer Vaccine's Protection; "Empire" Actor Blasts Alleged Attackers As "Liars." Aired 11p-12a ET

Aired December 07, 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]

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DON LEMON, CNN HOST: Tonight, a CNN exclusive. The January 6 Committee issuing subpoenas for the phone records of more than 100 people, including former top Trump administration officials like Chief of Staff Mark Meadows.

The White House saying President Biden was direct and straightforward with Russian Leader Vladimir Putin in a conference call they had on the possibility that Russia might invade Ukraine. Biden threatening strong economic sanctions.

And medical researchers in South Africa reporting the Omicron coronavirus variant partly evades protection offered by Pfizer's vaccine, but people who were infected by the coronavirus and then vaccinated are likely well protected against Omicron.

So, joining me now, CNN senior justice correspondent Mr. Evan Perez. Evan, good evening to you. Thank you for joining us, sir. What are we learning about these new subpoenas tonight? Is the committee getting the records that they are asking for?

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: They are, Don. And, you know, one of the first things that this committee did when they first got set up some months ago was that they sent letters to phone carriers, to telecommunication carriers, asking them to preserve these records. And now, we know that they have gone ahead and requested and gotten the records of more than a hundred people.

Some of these people -- this includes people inside Trump's inner circle. Obviously, some of these people are people who have been investigated by the Justice Department. But what's significant is that it includes people who were connected to Trump associates, people who were connected to the Trump -- to Trump's inner circle, and that includes the former chief of staff, Mark Meadows.

LEMON: But these records don't include what was said on the calls or text.

PEREZ: Right.

LEMON: So, what are they actually getting here and what do they hope to learn?

PEREZ: Right. Well, these are called detail records, Don. They don't include content, as you pointed out. They include, you know, who called whom, when, how long those calls or text -- how long those calls took place, took -- you know, and also, you know, when those texts were exchanged.

But, you know, for the committee, what they're doing is they're trying to put together a picture of what was happening inside the White House, you know, among those Trump associates in the days leading up to January 6th and during the event of the Capitol riots.

And so, for them, this is actually very, very important. So, they can get details from some of the people who already are cooperating, and we know that there are a number of those people that are cooperating and providing -- filling in those blanks that the records that they have don't provide.

LEMON: Well, I mean, Mark Meadows and -- I guess you can say he has done that in part because he has already turned over key communication records to the committee, right, and committee members telling CNN that some of the records are from his personal device. So --

PEREZ: Right.

LEMON: -- what does that tell you?

PEREZ: Well, I think one of the things that you immediately heard from Meadows and his attorney is that he is very angry about this because he only learned about it in recent days, that he says these are extremely -- these are very, very personal records, and he is citing this as one of the reasons why Meadows is pulling back from what he said was going to be cooperation with the committee.

Obviously, you and I know, Don, that there was always some doubt about exactly what that cooperation was going to entail. And as you and Dana laid out just in the last hour, there's a lot of other things going on here between Meadows and, of course, his new book and ways that he wants to try to make up with the former president.

So, there could be a bigger story here about why Meadows is not -- is suddenly not cooperating. But yes, it includes some of his personal records. And, you know, again, this is information in addition to the stuff that he has already turned over that could be very instructive to this committee.

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LEMON: Evan Perez, thank you, sir.

PEREZ: Thank you.

LEMON: Always a pleasure. I'll see you soon.

I want to bring in now Kim Wehle. She is a former federal prosecutor and the author of "How to Read the Constitution and Why." I highly recommend the book. And also, CNN senior political analyst Ron Brownstein. Good to see both of you. Good evening.

Kim, the committee already has messages that Meadows sent and received as the insurrection was going on. What could they learn from those communications?

KIM WEHLE, FORMER FEDERAL PROSECUTOR, AUTHOR: So, it's important, I think, to break this whole story into three pieces. The first is the plan for the actual terrorist attack on the Capitol. We know there is over 500 people that have been in the criminal justice system and said that "Trump sent us there."

The second is the plot to overturn the actual election results. That's where someone like Mark Meadows, Jeffrey Clark, others that were close to the president and took steps to potentially overturn the election results become relevant.

And just to be clear, the January 6 Commission, in its decision to hold Mr. Clark in contempt, stated officially that it has reason to believe members of Congress were part of that plot.

The third piece, of course, is the lack of security response. Any of us who live in Washington, washing this on television, jaw-dropping -- where is the police force and how much was this plot -- let's be clear, there was a plan to subvert an election -- how much of that was affected, the lack of security response?

So, these records are giving names, they're drawing connections between the protesters, the organizers, potentially members of Congress, people in the White House.

I think, really, Don, the challenge for this committee right now isn't getting information, it's processing it in time to do something with it prior to the midterms when if the House goes to the Republicans, which many people will believe will happen just by virtue of gerrymandering, if nothing else, the probe will stop.

So, they're really running against the clock to tie all this together as quickly as possible.

LEMON: All right. I see you there, Ron Brownstein, wanting to get in and shaking your head there.

RON BROWNSTEIN, CNN SENIOR POLITICAL ANALYST: Yeah.

LEMON: So, if Meadows doesn't show tomorrow, he's going to become the t third person held in contempt by the committee. On the other hand, we have top Pence aide, Marc Short, who is cooperating. Jamie Gangel is reporting that he might be able to share texts that he exchanged with other White House officials around January 6. So, where does this all lead the investigation in your estimation?

BROWNSTEIN: Well, look, I mean, ultimately, I think the Trump strategy is the same as it often is, and Kim pointed to it, is to delay in the hope -- you know, delay equals defeat for the other side, and to outweigh the investigators.

And this committee is being thorough and systematic and aggressive, but it does face the limitations of the clock. You know, we saw today that the trial for Steve Bannon's contempt by a Trump judge, the date was not set until July. So, certainly, someone like Mark Meadows and so forth are thinking they can outweigh this.

You look at all of this and you say -- I mean, I think the conclusion has to be that whatever the committee can do, where is the criminal investigation? I mean, in the Watergate decision, the U.S. versus Nixon in 1974, the Supreme Court -- I'm not a lawyer here but the Supreme Court pretty clearly indicated that executive privilege is not an absolute defense in a criminal investigation. There is no time clock on that. Certainly, this administration will be here until 2024.

I think as the months go on, no matter what the committee achieves, as Adam Schiff and others have kind of, you know, raised, pointed that finger, where is the Justice Department, where is the justice system in looking at this beyond the foot soldiers who actually invaded the Capitol?

LEMON: Kim, after learning that the committee is getting information from communications companies, Meadows says that he is done playing ball. Why do you think his mind changed? I mean, I wonder why -- I wonder who it could be.

WEHLE: Well, I agree with Ron that, you know, with what's happening with Bannon, who was blatantly in violation of the subpoenas, didn't do one thing in compliance.

Meadows is in a different posture for a number of reasons. First of all, he was close to the president. I agree the claims of executive privilege are not going to hold after what happened with Nixon in which the Supreme Court said, listen, that they need to investigate wrongdoing outweighs executive privilege, but that doesn't necessarily mean this won't be slowed down.

Number two, his lawyer has complied in part. So, their arguments are going to be it would be hard to prove willful contempt. So, he has a number of things in his favor. He has got this book going out there. He has got Trump angry with him. He knows that the Republicans could have a lot down on government a year from now.

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WEHLE: So, I'm sure there are a lot of pieces, not just the legal element, that are motivating his behavior. I also would agree with Ron that the question is, what is happening in the Justice Department? There is no grand jury that we know of that has been in panel to investigate this. Merrick Garland is busy suing Texas over alleged violations of the Voting Rights Act. The third lawsuit was filed this week.

I have to think, with this (INAUDIBLE) of obvious wrongdoing, dead people, people climbing over the Capitol, blatant attempt to overturn the election, calls to states to change their Electoral College votes, all of the stuff that we now normalize, that there are some serious crimes in there.

And we have to hope that the Justice Department under Joe Biden, even if the Congress shifts, the Justice Department will still pursue for the American people, the potential criminal charges here, because otherwise, America is in pretty dire straits moving forward.

LEMON: Ron, final word from you because all of this is coming out -- a lot of it is coming out from a book that was just released by Meadows. I'm sure -- I said this to Dana earlier and others, the former president has to be really furious about the information that is being released from the book. That is partly why he's cutting off his cooperation, meaning Meadows.

BROWNSTEIN: Right. Look, I guess I always thought Meadows was likely the only (INAUDIBLE) so far in releasing damaging information about Trump in this respect. But I just go back to the point. If you go back to the Supreme Court decision in 1974, it would seem that the claims of executive privilege can be more effectively challenge in a criminal proceeding than even in a congressional proceeding.

And you see the same question on this as we see on voting, as we see on abortion rights. Right now, is the Biden administration going to use the leverage it has, whether an executive action or pressuring for congressional action to try to respond to these various offenses that are unfolding around them?

This committee is doing important work and it will likely tell us a lot about what happened, but you kind of look at the cards that are being laid out, particularly delay on the contempt, judicial action, and it suggests they're not going to give us the complete action. It'll be a question of whether the Justice Department is willing to step in if and when Republicans take over the House in 2022 as midterms usually go.

LEMON: Ron, Kim, thank you so much. I appreciate it.

BROWNSTEIN: Thank you.

WEHLE: Thank you.

LEMON: Next, a man who says January 6 was just a rehearsal for a much more serious coup attempt next time, is he right?

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LEMON: Investigators on Capitol Hill racing to get to the bottom of what happened on January 6th. But as they work, alarm bells are going off that the former president's supporters are working to subvert the next presidential election.

I'm joined now by Barton Gellman. He is a staff writer at "The Atlantic" where he has a new piece out and is titled "Trump's Next Coup Has Already Begun." Barton, appreciate you joining us. Serious conversation.

This is sobering, a sobering cover story out in "The Atlantic" that you have. You're warning that January 6th was just a rehearsal for a much more serious coup attempt next time. What is keeping you, you know, at night looking towards -- up at night looking towards 2024?

BARTON GELLMAN, STAFF WRITER, THE ATLANTIC: Well, it's two things, really. The first is the development of what is really a mass political movement that has prepared to support violence for political ends. In that sense, January 6th was not a one-time transient event, but the expression of the violent impulses of tens of millions of people who believe based on national polling data, both that the election was stolen and Biden was therefore an illegitimate president, and that violence is explicitly justified in order to respond to the theft of the election.

LEMON: I was --

GELLMAN: About 21 million people.

LEMON: I was just having conversations with some of the producers I'm working with now who are, you know, the show -- listening to the show in my ear or at least talking to me in my ear. We were saying the same thing about how violence is acceptable now if you don't get what you want.

This is what you write, part of what you write. You said, if the plot succeeds, the ballots cast by American voters will not decide the presidency in 2024. Thousands of votes will be thrown away or millions to produce the required effect. The winner will be declared the loser. The loser will be certified president-elect.

This is pretty frightening. This is the nightmare scenario for the collapse of democracy where votes don't matter, just who gets to count the votes, right?

GELLMAN: Right. That is the second piece. In some ways, the primary piece of the threat that's going on right now, which is that well- organized Republican operatives are infiltrating and taking over the apparatus of election administration at the state and the county and even at the precinct level around the country and focusing in particular on swing states. So, they are studying what went wrong with Trump's effort to overthrow the last election.

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GELLMAN: How was he stopped? And they're going to each of those points of failure, they're repairing them, and they're trying to take them over. And so, for example, the secretary of state of the state of Georgia, whose job was to oversee the election count, certified the election. Trump famously tried on the telephone to persuade him to find 12,000 votes that would change the outcome of the state, and Raffensperger declined to do that.

LEMON: Yeah.

GELLMAN: What have they done? The state legislature, pro-Trump, has removed the secretary of state, Raffensperger, from the state board of elections that oversees the count. They have --

LEMON: Let me talk put this because you talked about this. I just want to put up the quote and then I'll let you finish. You said, Trump failed to reverse the results in 2020, but his supporters in key states have learned from that.

And this is what you quote. You're talking about this now. You said, some of them have rewritten statutes to seize partisan control of decisions about which ballots to count and which to discard, which results to certify and which to reject. They are driving out -- what you're talking about -- or stripping power from election officials who refused to go along with the plot last November, aiming to replace them with exponents of the big lie.

Go on. What needs to happen to stop this attempted corruption of our democracy?

GELLMAN: Well, that's unclear. It's a hard question because what they're doing is they're giving themselves the color of law. They are appointing themselves and their allies. They are appointing people who are proponents of the big lie to be in charge of the decision next time about which votes count and which votes are thrown away. And if they succeed in that, if they continue to succeed in that because they have made considerable progressive, then the official count will be up to them.

It's one thing to subject yourself to the will of the voters. (INAUDIBLE) try to choose who are going to vote for you. That's what gerrymandering does and voter suppression. But even better, if you want to fix an election, it is just to be in charge of the count.

And all of this is in service of an idea that if the Democrats win an election in the state, if they win enough votes to seize to win the electoral votes for that state, that the state legislature will then override the voters' choice and send electors for the republican instead.

LEMON: Barton, so, where is the sense of urgency? Why isn't protecting voting rights a top priority for Democrats?

GELLMAN: It is a top priority in the rhetoric sometimes, but it has not been in practice. The president has many priorities. They are important ones. There is COVID, there is the economy, there is social spending, there is infrastructure, there is climate. And he has not set those aside to put voting rights first.

And so, there is an emergency here. There is a credible risk that we lose our democracy in the next presidential election. And it's got to be made top priority or it won't be addressed. The president gave a speech in July. He said that voter subversion of the kind we're talking about now is the greatest test of our democracy since the Civil War. And since that time, he's done substantially nothing about it.

LEMON: Won't that be on the ballot in 2024? This next election will be different, right?

GELLMAN: Right. That's exactly the problem.

LEMON: Yeah. Barton Gellman, thank you. I hope people will read this. It is out in "The Atlantic," where you warn that January 6th was only a rehearsal for a much more serious coup attempt next time. Thank you, Barton. Appreciate it.

GELLMAN: Thank you.

LEMON: President Biden speaking with Vladimir Putin for two hours today. We're going to take you inside the most consequential video chat of the pandemic so far.

Plus, new data released on just how effective the COVID vaccine is against the new Omicron variant.

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LEMON: President Biden trying to put the pressure on Russian President Vladimir Putin, warning him against invading Ukraine. Biden telling Putin in a video call that he is prepared to launch economic measures against Russia if it makes a move. U.S. Intelligence showing that Russia could be amassing up to 170,000 troops along Ukraine's border.

Let's discuss now. Max Boot is here. He is a senior fellow at the Council on Foreign Relations. And CNN White House correspondent Mr. John Harwood here as well. Good evening to both of you.

John Harwood, I'm going to start with you because President Biden is warning Putin of economic measure if he invades Ukraine, but was really thin on the details. Does the White House think it got through to the Russian strongman, you think?

[23:30:04]

JOHN HARWOOD, CNN WHITE HOUSE CORRESPONDENT: I don't think they're saying more about that, Don, because they still don't know what Vladimir Putin has decided. They went into the meeting saying that while Putin was putting himself in position to launch an invasion of Ukraine, they did not believe he made the decision to do so. They came out of the meeting saying exactly the same thing.

Of course, Joe Biden has said it's his goal and he told Putin this directly on this two-hour video call, to raise the cost to Vladimir Putin if he chooses to take that step, perhaps unplugging Russia and its energy companies from the international financial system that would, of course, impose big hardships on Russia. It also would impose some hardships on people who do business with Russia.

The one thing that were especially thin on details, though, Don, is what is the diplomatic offramp that they may have discussed in that meeting that would avoid either the invasion or the sanctions? That is to say, are there steps that the United States and its western allies can take to somehow calm the fears of Russia that they are being encroached upon or threatened by NATO via Ukraine?

And so, without promising, say, Ukraine would never be part of NATO, are there ways they can talk about the relationship between Ukraine and NATO right now and where military assets are positioned and what kind of military exercises are performed?

Are there ways that they can calm that situation and give Vladimir Putin a way out of it and give the United States a way out of it because, of course, one thing that we know the United States doesn't want to do is commit military troops, but they're trying to figure out what other tools they can use to avoid a real conflagration there.

LEMON: So, to that end -- I mean, here is the thing, Max. It is not like Russia hasn't been hit with economic sanctions before, but the U.S. really has no appetite to get involved military. I mean, does Vladimir Putin know that? Is it really going to make any difference to him? Has he already decided to do what he's going to do? We really don't have an appetite for military action.

MAX BOOT, CNN GLOBAL AFFAIRS ANALYST: Well, I don't think we know, Don, what Putin has decided to do. It is not clear that even Putin knows what he has decided to do. He may be leaving his options open. But I think he understands that there is an imbalance of power and interest here.

Russia has more than 100,000 troops poised on Ukraine's borders and they've already invaded Ukraine, as you alluded in 2014, seized Crimea. They know that we know that Russia is willing to fight for Ukraine and Putin certainly knows the United States is not going to fight for Ukraine. We're not going to send our troops to battle the Russians to protect Ukraine.

But there is still a lot that we can do, a lot of which I think was communicated today by President Biden. Even though we're not going to fight ourselves for Ukraine, we can certainly enable Ukraine to fight back and provide them with even more weaponry to impose costs on the Russians, especially with guerilla warfare of the Russian to actually invade.

And also, the economic sanctions which we have certainly slapped on them in the past. We can ratchet it up to another level. You know, something like kicking them out of the swift system with interbank transfers is kind of the death penalty of economic sanctions. That's going to delink the Russian economy from the western financial system.

We can also impose massive sanctions on their Nord Stream 2 pipeline to Germany. And, of course, we can go after all the ill-gotten gains that Putin and his oligarchs have hidden in the west. So, there are ways certainly we can impose cost on them. But ultimately, there is no way that we can just say, you can't invade. Ultimately, it's going to be up to Putin to make that decision based on his calculus of risk and reward.

LEMON: Max -- John, Max just mentioned Crimea, as you know, and you've said we've been here before. I mean, we've been here before with the president who was the vice president under Barack Obama, President Barack Obama, when Russia annexed Crimea in 2014, as Max referenced. How is that weighing on his thinking?

HARWOOD: Well, I think he has seen the inability of previous presidents to deter Vladimir Putin, which weighs into his thinking about how high to take the message that he would impose. He was, of course, in the United States Senate when Russia invaded Georgia. George W. Bush wasn't able to prevent that from happening.

He was vice president in 2014. Russia seized Crimea. Then Vice President Biden put out a statement saying Russia is now naked in front of the entire world, the entire world is against this. Well, guess what? The naked guy still has Crimea. And so, President Obama and his allies tossed Russia out of the G8. That didn't do anything.

[23:34:57]

HARWOOD: And so, I think when you talk about, as Jake Sullivan did at the White House today, we are prepared to do things that we were not prepared to do in 2014. That reflects the impact of president -- now President Biden having lived through that experience and seeing how feckless the efforts to deter Russia turned out to be.

LEMON: Max Boot, Biden is also dealing with another rival, Xi Jinping in China. Do you think Biden's handling of Russia and Ukraine influence how - is going to influence how China moves forward with its own ambition?

BOOT: There is definitely some relationship there. It is not very close but there is some relationship because there are some analogies between those two situations where you have China threatening to invade Taiwan, a democracy in East Asia. And, of course, you have Russia threatening to invade Ukraine, a democracy in Europe.

So, they're both taking their read and their measure of President Biden. Certainly, if President Biden lets Russia get away with an invasion of Ukraine, I think that may very well embolden China to act more provocatively with regard to Taiwan. And vice versa, if Biden is able to draw a red line on Ukraine, that may dissuade China from aggression against Taiwan.

LEMON: Max Boot, it is good to see you in person.

BOOT: Great to see you, Don.

LEMON: Sitting back in the studio. And John, get to New York or get to D.C. and we'll get to see you in person as well. Thank you so much, both of you. I appreciate it. HARWOOD: We'll do it.

LEMON: The Omicron variant now detected in 21 U.S. states and the first study of the variant in vaccinated people could be a warning sign.

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LEMON: A new study out of South Africa giving some of the first insight into how the Omicron variant impacts vaccinated people. Researchers say it partly escapes the protection offered by the Pfizer vaccine. So far, Omicron has been detected in 21 states and more than 50 countries.

I want to bring in now Dr. Peter Hotez, professor and dean of tropical medicine at Baylor. Doctor, thank you. I appreciate you joining us.

PETER HOTEZ, CO-DIRECTOR OF THE TEXAS CHILDREN'S HOSPITAL CENTER FOR VACCINE DEVELOPMENT, FOUNDING DEAN FOR THE NATIONAL SCHOOL OF TROPICAL MEDICINE AT BAYLOR COLLEGE OF MEDICINE, AUTHOR: Thanks for having me, Don.

LEMON: So, break this down for us. Let's start with what this study shows for people who have gotten the Pfizer vaccine, two shots. What can you tell us? What does it tell you?

HOTEZ: Well, the first point to make is this is not a true vaccine effectiveness study. This is a laboratory experiment where what you do is take blood from individuals who have been vaccinated and you confirm that it neutralizes the virus that it was intended for in the laboratory, and you compare those virus-neutralizing antibody titers to the Omicron variant.

And what it shows is not surprising, that it confirms that people who have gotten two doses of the Pfizer vaccine indeed neutralized the original lineage virus, which is expected. But then, there is a substantial drop in the virus-neutralizing antibodies around 40-fold to the Omicron variant.

Now, 40-fold may seem like an extraordinary amount, but in virology, we deal in log values. So, the partial good news is that the antibodies didn't disappear entirely or is not at thousand-fold decrease, so there is like some effectiveness.

The problem is, with just two doses of the vaccine, in many cases, it's below the level that we would feel comfortable saying it is still going to protect against Omicron. So, I think the first lesson of this is almost certainly everyone who has gotten two doses is going to need a third dose, and we should think about the COVID vaccine now as a three-dose vaccine.

And we do not have the data yet on the individuals who have gotten three doses. But what we do have is individuals who have been infected before and then gotten vaccinated, and they seem to do a little better than the two doses. So, let's stop there and see what questions you got.

LEMON: Okay. So, someone who has the COVID virus before and has had two shots. What about someone like me who has never had COVID and who has had the booster?

HOTEZ: So, that's the big question everybody wants to know. So, in this study, this South African scientist did not measure antibodies with people who have gotten three doses. So, the potential good news is that we've seen a substantial rise in virus-neutralizing antibody titers in people who have gotten three doses, some 10-fold, some 30 to 40-fold.

So, if you're getting a 40-fold drop against the Omicron variant, I think there is a high likelihood that individuals who have gotten three doses the vaccine are still going to be protected. But we have to confirm those experiments and all of us, including those who are -- groups that make vaccines including our group, the Pfizer, Moderna, people are all now looking at individuals who have gotten those three doses.

LEMON: So, doctor, cases are rising among children again even though kids five to 11 are eligible for the vaccine. We know kids' vaccines have smaller doses. So, what do parents need to know there?

HOTEZ: Well, the kids, even though they have gotten smaller doses, they can still respond very robustly to the virus and to the vaccine. So, the point is kids who have gotten two doses of the vaccine may still be protected against the Omicron variant. So, all of those studies are pending as well.

[23:45:00]

HOTEZ: I think another key message, though, is that individuals who have gotten infected and recovered, they should certainly consider getting the vaccine on top of it because what we're seeing now are a lot of Omicron reinfections in South Africa.

So, if you've only gotten infected and recovered, you've not gotten vaccinated, now is the time. The new studies today out of South Africa seemed to confirm that those individuals who also get vaccinated on top of infection could do quite well against this virus.

LEMON: Real quickly because I have a short amount of time here left, but if you got the other vaccines, the Moderna or J&J, what does this mean?

HOTEZ: We don't have the data. But I would think with Moderna, the results are going to be similar to Pfizer and possibly J&J. This is just the first early study. You're going to start to see a lot of other laboratories now confirm these results or refute the results, and look at both the Omicron variant as well as what we call the pseudovirus that many of us are now getting into our labs in order to look at this.

LEMON: Thank you, doctor. I appreciate it.

HOTEZ: Thank you.

LEMON: Jussie Smollett taking the stand again to defend himself and things got tense. We've got the details after this.

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LEMON: So, closing statements are set for tomorrow in the trial of Jussie Smollett. The former actor from the show "Empire" accused of staging a phony racist and anti-gay hate crime and claiming he was the victim. Before his defense rested today, Smollett took the stand for a second day, insisting the attack was real.

I want to discuss now with CNN legal analyst Joey Jackson, a criminal defense attorney. Joey, good to see you. Thanks for joining.

JOEY JACKSON, CNN LEGAL ANALYST: Of course, Don.

LEMON: Things got tense between Smollett and the prosecutor cross- examining him today. Do you think it was a good idea for him to even take the stand?

JACKSON: You know, Don, in some respects, he needed to because he has to explain his narrative and the story. At the same time that you do, you expose yourself so much. Like what? Like the essence of a story. You're going to have to explain it, and he did when he has tried to testify about, look, I have come through so much in my life, I'm a musician, and I think part of that is to humanize him and that's great.

But when you get into the details, it gets murky. Number one, you are an actor, right? And as a result of that, you're going to be compelling. But you're going to remind the jury not to get lost in that. What about the fact that there's $3,500 that you have to account for that you gave the brothers? How do you explain that?

What about the fact that the police asked you for DNA to assist you in the case, and you say no because you don't do ancestry.com? You have to explain that. What about the fact that the police just wanted your phone so that they could assist you, but you don't want to give it? You have to explain that.

What about the fact that you visited the scene on the preceding days so that you can stage this and you have to kind of explain, well, wasn't that you there? What about the fact that it's 2:00 a.m. and people know where you are? Don, I could go on.

And so, when you have to explain, explain, explain, it becomes whale. This is way too much explaining for me to the point that the narrative is inconsistent, it doesn't make sense, and did you really do this? And so, look, I get why he took the stand. I think at the end of the day, actor, talented or not, it's just too much to overcome with respect to facts that are compellingly against him.

LEMON: And then there is also Dan Webb as well, a very talented prosecutor. So, the Osundairo brothers are the only other witnesses to have testified. They're the two men who say that Smollett paid them to carry out the attack in order to get media attention. The jury has now heard both brother story and Smollett story.

Is this going to end up just being about who the jury finds most credible, not just, you know, the humanization part of Jussie Smollett, but who is most credible, the brothers or Smollett?

JACKSON: Yeah. So, it comes down, of course. Trials come down to credibility with respect to who's reliable, who's telling the truth, who's believable, et cetera. But it also comes down to what factual scenario would make sense to you. And when you examine the factual scenario, was the $3,500 that you have a transaction of, was that for nutritional supplements or was that because you paid them off?

A text message saying, I want to meet with you brothers to do something on the downlow, is that about something or was that about this incident? Footage of you at that event, in that particular location where this occurred, is that because you were planning it or was it just simply a coincidence? The fact that you don't want to cooperate with the police -- again, I could continue.

But what I'm saying to you is, yes, it comes down to credibility, but it comes down to what all of us attorneys preach to jurors. We know what stories are like. We know what makes sense. We know about good judgment. We know about all about that.

At the end of the day, if you put the two things together, which one of these narratives is more compelling to you, ladies and gentlemen? So, I think to your question, it comes down to, A, credibility, and it comes down to two, a narrative, which is consistent with reality.

And if that narrative is inconsistent with reality, as I have to objectively say, I think Mr. Smollett's narrative is, I think the jury then, you know, renders a different conclusion.

LEMON: Okay. So, then having said that, closing is tomorrow, the jury is set to deliberate, what do you expect to hear, Joey?

JACKSON: I expect to hear the prosecutor say, ladies and gentlemen, look at all the facts and surrounding circumstances.

[23:55:00]

JACKSON: And I would submit to you, you will say to prosecutor, if you do that, you will see that this is an individual who faked a hate crime. This is an individual who had a noose around his neck when the police came, but he put it back on. This was an individual who planned this whole hoax and he was involved with these two brothers. This is not about the narrative that Mr. Smollett would have you believe about I didn't want to cooperate with the police because they're in bed with Trump. And you know what? I just don't do ancestry.com and these people really hate me. Now, let us switch the script.

Of course, if you're the defense, you're going to argue that, listen, Mr. Smollett is the victim here, make no mistake about it. The fact is that he was preyed upon by these brothers, these brothers don't make sense, the $3,500 is explainable as a result of it being a payment for something other than this nefarious hoax that they're alleging he engaged in, and why wouldn't my client mistrust the police with respect to cooperating with them because he didn't believe that they believed his story.

And so, those are the things you'll hear in front of the jury. We know that the jurors, Don, will make the ultimate assessment and conclusion. I just think that the facts here are pretty much on the prosecutor's side. But we'll see what the jury has to say because they're the ones that matter.

LEMON: Not to mention where are two MAGA guys who supposedly did this. I mean -- yeah. Thank you, Joey. Appreciate it.

JACKSON: Always.

LEMON: Thanks for watching, everyone. Our coverage continues.

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