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Don Lemon Tonight

President Biden With Message To Unvaccinated Americans; Dr. Fauci Calling For Jesse Watters To Resign; Sen. Tina Smith (D-MN) Was Interviewed About The Caucus Meeting They Had; Rep. Scott Perry Defied Committee's Power. Aired 10-11p ET

Aired December 21, 2021 - 22:00   ET

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

[22:00:00]

MICHAEL SMERCONISH, CNN HOST (on camera): What do we have? You can lead horse to water. If unvaccinated don't want it, not going to happen. I know several in the blue state. Debi, I gave you the data which says that, what was it, like 40 percent or so of the unvaccinated say never. Never going to do it. How distressing that is, right?

Thank you for watching. I'll be back tomorrow night. DON LEMON TONIGHT begins right now with Laura Coates. Hi, Laura.

LAURA COATES, CNN HOST: Hey, Michael. I wonder if the president's message did lead some horses maybe to water, but will it actually make them drink. It's a really good question for our audience tonight. I appreciate it.

SMERCONISH: Yes. Well, have a great show. I know you will.

COATES: Thank, well, aren't you sweet? Thank you so much. I appreciate it.

This is DON LEMON TONIGHT. And I am Laura Coates in for Don Lemon.

President Biden trying to calm and reassure a nervous and tired nation as a new surge of COVID-19 cases hits the country with the holiday season now upon us. The U.S. is now reporting about 140,000 new cases every single day. That's a 16 percent jump over last week.

And with the highly contagious Omicron variant now the most dominant strain, the president is telling Americans who are fully vaccinated and who got the booster not to panic saying they're highly protected, but he's also giving the millions of eligible Americans who are still not vaccinated a very blunt warning.

(BEGIN VIDEO CLIP)

JOE BIDEN, PRESIDENT OF THE UNITED STATES OF AMERICA: If you're not fully vaccinated, you have good reason to be concerned. You're at a high risk of getting sick, and if you get sick, you're likely to spread it to others including friends and family.

And the unvaccinated have a significantly higher risk of ending up in a hospital or even dying. Almost everyone who has died from COVID-19 in the past many months has been unvaccinated, unvaccinated.

(END VIDEO CLIP)

COATES (on camera): The president saying the nation is not going back to the days of March of 2020, you know, when the pandemic first took hold. Precisely because more than 200 Americans, 200 million Americans are now fully vaccinated, and that we have the resources to keep schools open.

Biden also announcing the government's buying 500 million at-home tests that Americans can now request through the mail beginning next month. But with this new surge is that too little, too late. Some answers from the experts in just a moment here, and the president is also lashing out at people who are encouraging Americans not to get vaccinated.

(BEGIN VIDEO CLIP)

BIDEN: Those choices have been fueled by dangerous misinformation on cable TV and social media. You know, these companies and personalities are making money by peddling lies and allowing misinformation that can kill their own customers and their own supporters. It's wrong. It's immoral. I call on the purveyors of these lies and misinformation to stop it. Stop it now.

(END VIDEO CLIP)

COATES (on camera): It's wrong, it's immoral. Stop it now. I want to bring in Dr. Peter Hotez, he is the co-director of the Texas Children's Hospital Center for Vaccine Development. Also Dr. Lena Wen, the former Baltimore health commissioner who is also the author "Lifelines: A Doctor's Journey in the Fight for Public Health."

Dr. Hotez, I'm glad that you're here, and of course, Dr. Wen as well, I'm glad to have both of you here tonight. I want to begin with you, Dr. Wen. Because here is what President Biden's message was to vaccinated people. Let's listen in.

(BEGIN VIDEO CLIP)

BIDEN: If you are vaccinated and follow the precautions that we all know well. You should feel comfortable celebrating Christmas and the holidays as you planned it. You know, you've done the right thing. You can enjoy the holiday season.

(END VIDEO CLIP)

COATES: Dr. Wen, people are tired. They're frustrated. They obviously want to get together after two years going into really a third year of this pandemic. But the Omicron variant is spreading. Was this a public health message or more of a political one? What do you think?

LEANA WEN, FORMER BALTIMORE CITY HEALTH COMMISSIONER: Well, I don't know what the intention of the message was in terms of public health versus political. I could just tell you that I completely agree with President Biden's message from a public health standpoint, and the reason is this, vaccinated people are well-protected when it comes to severe outcomes from Omicron, especially if they are vaccinated and boosted.

I think also that vaccinated people have gone through so much during this pandemic, there are millions of Americans who have done the right thing all along, and they should no longer have to pay the price because there are people choosing to remain unvaccinated.

If you restrict the activities of the vaccinated who are also very likely to be taking over precautions like masking and testing, you're not really going to accomplish very much.

[22:04:59]

The goal really -- and I wish President Biden had done more of this during his speech -- I wish that he had gone into all the things that should be done to restrict the activities of the unvaccinated, as in the unvaccinated are the ones who are predominantly getting sick overwhelming our hospitals, spreading coronavirus, and it's time to have, for example, requirements for vaccination for domestic travel or increasing the types of things that Los Angeles, Seattle, now Boston, Philadelphia are doing to require vaccination for indoor dining, gyms, et cetera.

We should not be doing lockdowns or restrictions that affect the vaccinated. Let the vaccinated make the best choices for themselves. Give them tools like testing to protect themselves, and in the meantime, really focus on restricting the unvaccinated who are causing the prolonging of this pandemic for all of us.

COATES: Dr. Hotez, do you agree? Because of course there is that notion of fatigue. There is the idea of look, if you've done all that you can, the idea of getting vaccinated, the ideas of getting the booster, children being vaccinated as well, wearing the mask, the idea of following the science and advice.

I mean, you even see people right now who are waiting for hours in lines for tests all across this country, given this is a very big pillar of what the Biden administration and advisers are saying is critical. But this is what Biden did have to say when asked if testing in this country, well, is a failure. Here's his response.

(BEGIN VIDEO CLIP)

BIDEN: No, it's not because COVID is spreading so rapidly, if you notice, it just happened almost overnight just in the last month. I don't think anybody anticipated that this was going to be as rapidly spreading as it did.

(END VIDEO CLIP)

COATES (on camera): Dr. Hotez, is he right? I mean, did nobody really anticipate this? What do you think?

PETER HOTEZ, CO-DIRECTOR, TEXAS CHILDREN'S HOSPITAL FOR VACCINE DEVELOPMENT: Well, it certainly did come up very quickly. We thought we had about four to six weeks before Omicron came from the United Kingdom and came over to the United States, which is what happened with the Alpha and Delta variant, but it came up much sooner than we would have thought. So that part is true.

On the other hand, we had enough notice from South Africa to know this is going to be a huge issue. And testing and home testing is still never gotten to the level that it needed to. Two years into this pandemic, we still haven't made it easy breezy to get home testing, unlike European countries.

Look, the problem is going to be this. We are going to now have pretty significant surges on our hospitals and our intensive care units. It's going to come from individuals who are unvaccinated and there's a lot of them. We've only gotten two doses into 60 percent of the country.

It's going to come from those who are infected and recovered but got the wrong message, many from far-right wing news sites and conservative news outlets that if you're infected and recovered you don't need to get vaccinated.

We just had our individual from here in Houston, our first Omicron death are from someone who was infected and recovered and did not get vaccinated on top of it. And we knew that because in South Africa they're seeing huge numbers of Omicron reinfections.

It's going to also come from individuals who have gotten two doses of the Pfizer vaccine or the Moderna vaccine. Because it's not protecting at all against symptomatic illness and only partially protective against severe illness.

And so that's going to be the big -- that's going to be the big surge we're going to see. We're already seeing 140,000 new cases. It's going to continue to climb. I don't know if it will get to a million cases as Dr. Collins said it might. But it's going to be very high, and then we have the second punch, and the second punch is the fact that the health care workers even if they've gotten that third immunization, that boost, we know it has rapidly waning immune protection against symptomatic illness.

It will keep them out of the hospital, but we're going to see huge numbers of health care workers stay at home because they're sick with mild COVID symptoms and can't come into work. And I don't know who's going to help cover that surge. And so that's the weak link, and that's the part that keeps me up at night.

COATES: I mean, it's giving us all insomnia. The idea we saw our health care workers, Dr. Leana Wen, who were overwhelmed. You have hospitals taking out ads in papers that just say help, trying to get some semblance of how to constrain what's going on to arrest the metathesizing of this pandemic.

And you looked in of course, he mentioned South Africa, Europe, the U.K. is saying today, Dr. Wen, that they're lowering the self- isolation period in most COVID cases from 10 days to seven. Is the U.S. soon to follow something like this? Is this a good and pragmatic solution? WEN: I really hope so. So, I hope that the CDC is right now

evaluating the data around this, and the reason is 10 days is a really long time. So, to Dr. Hotez's point, if health care workers who test positive now have to be out of commission for 10 days and especially if they are mildly symptomatic or have no symptoms at all, that's really long.

[22:09:57]

So, if you can cut 10 days to seven or ideally even five or fewer, I mean, maybe you could also have a testing system so that if you keep on doing daily tests until you test negative, maybe that's a way for us to go, too.

I also think right now we need to figure out a way to incentivize testing. Right now, we are disincentivizing testing because if somebody tests positive and now, they're going to visit their relatives, they travel across the country, they test positive, that's really difficult for them.

They're now stuck in another part of the country for ten days. They can't be at work. They maybe can't see their family. That's really a big problem. We need to figure out a way to make testing not only the right thing to do from a public health standpoint, but also the -- we need to align the incentives so that people want to be tested.

Perhaps insurance companies can lower premiums for people who are testing twice a week. All that of course hinges on the Biden administration really figuring out how to ramp up testing.

COATES: Right.

WEN: Five hundred million tests sound like a lot but they're actually a drop in the bucket. And we need to do a lot more than that.

COATES: You do wonder if it has a stigmatizing effect or a disincentive for people wanting to get tested if there's going to be, you know, a complimentary notion of having to isolate, the idea of people already being fatigued. I do wonder how that's going to play out.

But again, he described a patriotic duty for vaccination as well today. Dr. Hotez, the time we have left, I want you to address this point. Because both of you have given medical advice. You have used your expertise to try to provide information to the masses. You've tried to make sure that that insight is conveyed appropriately.

Dr. Fauci as you know is calling for Fox host Jesse Watters to be fired after he encouraged a crowd at a conservative conference to go after Fauci. Listen to this.

(BEGIN VIDEO CLIP)

JESSE WATTERS, HOST, FOX NEWS: Now you go in for the kill shot. The kill shot with an ambush, deadly because he doesn't see it coming. This is when you say, Dr. Fauci, you funded risky research at a sloppy Chinese lab.

ANTHONY FAUCI, DIRECTOR, NATIONAL INSTITUTE OF ALLERGY AND INFECTIOUS DISEASES: That's awful that he said that, and he's going to go very likely unaccountable. I mean, whatever network he's on is not going to do anything for him. I mean, that's crazy. The guy should be fired on the spot.

(END VIDEO CLIP)

COATES (on camera): And he's right because Fox is standing by Watters. But doctor, you personally know that language like this is incredibly dangerous, right? I mean, the ramifications, the consequences of having the temperature at that level is really unbelievable.

HOTEZ: Look, this is not this one individual. It's not Tucker Carlson, it's not Laura Ingraham. Laura Ingraham goes after -- has gone after me on several nights, and what follows is a series of e- mails that call on patriots inciting them to violence against me and my family.

This is a systematic attempt by the leadership of Fox News to target not only the science, not only to discredit vaccines but to put a target on the beck of scientists, prominent U.S. scientists. And it's not only Fox News. This is coming from all of the major conservative news outlets. And I've been writing about it, and it's -- I call it anti-science aggression, and it's coming from members of the United States Congress who say things to incite violence against scientists.

It's coming from the conservative news outlets. It's coming from a group of contrarian intellectuals from far-right wing think tanks. This is a coordinated effort as part of an authoritarian attempt to discredit science, discredit scientists.

It's a very scary time for a number of us. And what this terrible person said about Tony was particularly egregious, but it's not that different from the kinds of things that have gone on with attacks against a number of us.

COATES: Dr. Wen, I know you likely echo those same sentiments. I hope the best for you both and keep your safety top of mind. It's just unbelievable that here we are right now, the idea of trying to relay scientific data puts you at risk. I mean, that's just a shocking and bizarre and -- well, in the words of the president, he talked about disinformation. It's wrong. It's immoral, and it needs to stop. Thank you to both of you. I appreciate it.

HOTEZ: Thank you.

COATES: You know, senate Democrats are meeting late tonight as their agenda, well, falls apart. That includes Senator Joe Manchin. So, what exactly did he say? I'll ask Senator Tina Smith who was there about it.

[22:15:00]

(COMMERCIAL BREAK)

COATES (on camera): Tonight, Senate Democrats are regrouping in a special caucus meeting. President Biden insisting that he and Senator Joe Manchin will be able to, quote, "get something done on Build Back Better."

This just days after Manchin said he's a no on the bill. Senator Tina Smith from my home state of Minnesota taking part. She called Manchin reckless after he gave the bill a thumbs down, but she says she's not walking away. Senator Smith joins me now. Welcome to the show, Senator Smith. I'm glad to have you on.

SEN. TINA SMITH (D-MN): Thank you, Laura, it's great to talk with a fellow Minnesotan tonight.

COATES: It always is. We'll try not to have our biggest accents on. But if it comes out, that's OK too. Senator, I have to ask you, I mean, a lot of Democrats are extremely frustrated as you well know with Senator Manchin a lot of people in the public too.

And sources are telling CNN that he actually addressed the caucus at tonight's meeting saying that he's been consistent for months that he is worried about inflation and adding to the debt. Just how did the caucus respond to that statement?

SMITH: Well, on the Zoom call that we had tonight, I'm not going to characterize exactly how it all went down, but let me just tell you that there was a couple of things that came out for me. One is for almost everybody in the caucus an intense sense of urgency to move forward on Build Back Better and also on this crucially important voting rights bill that also is before us.

A real sense of determination to get something done. I don't think that Senator Manchin said anything tonight on the call that was different from what he has said publicly. But the point is that we have really important work to do to move our country forward, and that was the topic of what we were all talking about.

And I also just want to say that Senator Schumer, as he did in his dear colleague letter that has been public, kind of reminded us all of what we have been through this year.

[22:19:59]

I mean, the year started with an attack, a violent attack on the capitol just as the Democrats were establishing a 50-person majority in the Senate. It's been the longest 50/50 majority ever in the United States Senate, and we have accomplished a lot, but there is important work yet to be done, and that's what we are looking forward to going after as soon as we get back and really quickly when we get back.

COATES: I appreciate that. The idea of the persistence and the idea of the optimism as it comes to politics. But as you know, the electorate oftentimes judges Congress by its next accomplishment and has a short maybe memory of what has been accomplished. And there have been accomplishments this year, but I do wonder in

terms of what has been the response when you have this urgency, when you have the feelings of wanting to get things done, legislative priorities, Senator Smith, are people receptive to the fact that he consistently represents a political hurdle in many respects for getting that agenda accomplished?

SMITH: Well, I think that we, of course there's a lot of frustration. I mean, I'll be totally honest about that. You could see that frustration in the things that I had to say this past week, but we also are practical. Even the progressives in the caucus like me are practical, and we're saying, OK, what can we get done, let's get that done.

Let's build on the successes that we've had this year, on appointing on excellent judges, the work that we've done in the American recovery, in the ARP to get that done, let's build on that. You know, the Senate can be a frustrating place, especially when there is such a challenge with the rules that we have in the Senate, and that's also, I think, something that you're going to see us tackling the beginning of the -- the beginning of the year because we need --

(CROSSTALK)

COATES: Like the filibuster, Senator? I mean, is he addressing -- are you all addressing the filibuster? That's one of the biggest hurdles. Right? You mentioned voting rights and other aspects. Has the filibuster been brought up as a way of either altering or amending, or making exceptions like was made to raise the debt ceiling?

SMITH: Well, we have been talking about how can we return the Senate, restore the Senate so that we have a full debate but that a minority of the Senate can't just continually block progress on issues like voting rights that are so crucially important to the future of our democracy.

And you know, we can do those things without totally getting rid of the filibuster. Now I support getting rid of the filibuster but the question is how do we find a place that all 50 of us can agree to. And that's what we need to do in order to move voting rights forward. I hope that we will do that.

Because let's -- let's be clear, every -- what's happened in 2021 is that Republican majorities and state legislatures have been passing voter suppression laws with a simple majority. We ought to be able to protect voting rights in the United States Senate with a simple majority.

COATES: Ought to and frankly should. I mean, the Supreme Court still waiting for that recalibration, as you know, of section five of the Voting Rights Act to refortify section two, and it seems whatever legislative priority is there, if you can't fix the issue of voting rights, with people feeling like there's integrity and access, as you well know, Senator, it's almost impossible to be able to have the confidence to get things done. Thank you for your time. I appreciate you giving us some insight into

what happened today and what the priorities are next term. Thank you. Or next year. Happy New Year.

SMITH: Happy New Year to you, too.

COATES: Thank you.

So, the question is what happens if they can't make a decision? I mean, that's what jurors in the Kim Potter trial are now asking a judge. We'll take you there, up next.

[22:25:00]

(COMMERCIAL BREAK)

COATES (on camera): We've got breaking news in the trial of former Minnesota police officer Kim Potter. The jury is sending two questions to the judge on their now second day of deliberations.

CNN's Omar Jimenez is covering this trial for us. Omar, a lot has happened, and you've been covering it so thoroughly. The jury, I understand, is asking two very important questions today. Tell us what happened.

OMAR JIMENEZ, CNN CORRESPONDENT: That's right, Laura. Well, for starters it seems the jury may be struggling to come to a consensus. And that's an indication that we got from at least one of the two questions they asked the judge today. That first question was simply if we can't reach a consensus, what is the guidance on how long we should go, and what next steps should be taken?

The judge referred them to a portion of their jury instructions and said that, well, you should work toward deliberating, toward a consensus, but without violating any individual judgments and further pressed on and said no one should be sacrificing their honest opinions just because they feel pressure to get to a verdict.

And as you mentioned, this has now spanned two days total, more than 14 hours. They're of course done deliberating for the day, and this more than 14 hours is already over four hours more than it took to convict Derek Chauvin back in April of this year.

The second question they asked, though, was a little bit more procedural. They just wanted the zip ties to be taken off of Kim Potter's gun so they could hold it outside the evidence box. Of course, it's been rendered safe by the court.

But they -- that's important because they likely want to feel the difference between Kim Potter's weapon and her taser, though prosecutors did say because the gun is unloaded it's probably not going to match the weight of what Kim Potter felt back in April of this year, but of course it's important because Potter has claimed that she mistook her taser for her gun when she shot and killed Daunte Wright during that traffic stop back in April of this year. Prosecutors have argued that the mere fact she intended -- or she says

she intended to grab her taser shows that even she didn't think this was a scenario that required lethal force. The defense has argued that if Daunte Wright had just complied, none of this would have happened. But of course, that is the central issue in this trial, and what it seems like the jury is having trouble getting to a consensus on.

COATES: Omar, so much more to look at and of course I'm wondering about that sort of Damocles that is upcoming holiday and the impact on that decision as well.

Omar, thank you for your reporting.

[22:29:59]

Joining me now is CNN legal analyst Areva Martin. I'm so glad that you're here. She's also the author of the book "Awakening: Ladies, Leadership, and the Lies We've Been Told."

Glad to talk about that another day as well. I can't wait to learn more about that and the lies you've been told, Areva. Let me ask you this, though. Look, the jury is asking tonight what happens if they can't reach a consensus? That sounds to me like this might be heading, the possibility towards a hung jury. Are you getting that sense?

AREVA MARTIN, CNN LEGAL ANALYST: Yes, I'm getting that sense, Laura. Good evening, first of all, and yes, I'm a little worried about the question from the jurors. We know the judge has the opportunity, if he chooses to do so to bring them in and give them an Allen charge.

You know, he could encourage them to continue to deliberate telling them to re-examine their opinions, to re-examine the evidence that's been presented, but given that we are so close to the Christmas holiday and given that they've already been deliberating for two days suggests that there probably is, you know, a lack of consensus in that jury deliberation room and that could mean a hung jury.

COATES: Now, as a defense attorney, of course, that is cause to think that there might be a seed of reasonable doubt, but this point here that Omar mentioned, the idea of the jury wanting to take Potter's gun out of the evidence box, to hold it, remove the zip ties.

I mean, this case has been about not whether or not she intended to kill this young man, 20-year-old Daunte Wright who was shot during the Derek Chauvin trial we might add but the idea of was it reasonable? Was it culpable negligence? Was it reckless for her to mistake this one weapon for another?

Are you thinking this is, by looking at the gun, by trying to hold it, it goes to that notion of whether it was preposterous for her to believe and make this mistake?

MARTIN: That's one way you could interpret what the question is, Laura, but also maybe the jurors are believing her. You know, she gave very emotional testimony saying she didn't plan to hurt anyone, she didn't intend to hurt anyone. And they heard her on that video yelling taser, taser, taser, so perhaps jurors are believing Kim Potter's testimony and wanting to see how easy would it be to make that kind of mistake.

I think it seems concerning to me that they did not accept Kim Potter's own words. She herself pretty much admitted to a cross examination that her conduct was unreasonable. We saw what she said after Daunte that she failed to render aid to him, that she failed to contact the other police officers, call 911, do those things that an officer, particularly one with 26 years of experience would be expected to do.

I thought the prosecution had laid out a pretty effective case, at least for the second-degree manslaughter, if not for the first degree, which is, you know, you talked about recklessness. But based on what we're hearing, these jurors don't see it, at least some of them perhaps don't see it the way the prosecution thought they would.

COATES: And of course, we know that this is not a case where the prosecution is even having to prove intent, right? They can have the sympathy towards somebody for purportedly making a mistake and still meet the evidentiary burden of each element.

And you mentioned second degree manslaughter, the idea of creating unreasonable risk and then acting in a way that does not essentially undermine it. I mean, you've been critical of the defense that Potter's team has actually put forth. What's your issue with their case?

MARTIN: Well, a couple of things. One, you know mistake is not a defense to the charges that have been brought by the prosecution, and two, this whole emotional testimony that she gave, I think that the defense is hoping for what we know to be jury nullification where jurors say, yes, the facts are there. The law is there. There's enough there to find someone guilty, but we don't -- you know, we don't want to do it. We don't want to do it because maybe we feel sorry for her. Maybe she's already expressed some remorse.

So, jury nullification is a big issue in this case. Then we heard the defense argue that Daunte Wright caused his own death. And that's --

(CROSSTALK)

COATES: That was pretty unbelievable.

MARTIN: Unbelievable, but we see, you know, I know, we see this so often in these cases, particularly when you have a white defendant who's been charged with killing an unarmed black man, so that he would get up and make that statement was pretty offensive. But not surprising.

So, yes, I do have some problems with the way the defense presented its case. I think they were trying to play on the jury's sympathies and cause them to, you know, feel sorry for Kim Potter.

And what we do know, Kim Potter said immediately after she shot Daunte Wright, I'm going to jail. To the extent she was emotional, we know she was emotional about the fear of going to jail, and I hope the jurors didn't discount the emotional testimony from Daunte Wright's mother, who we know was crying because her 20-year-old son was shot and killed in an unnecessary and in unavoid -- and what should have been an avoidable situation.

COATES: I mean, this is such a tragic set of circumstances, a life lost. I can only imagine what that family is going through. And I, frankly, it's unbelievable to think that this happened even during that Derek Chauvin trial. But this is a very different case. It's now in the jury's hands.

Areva Martin, thank you for your expertise as always. I appreciate it.

MARTIN: Thanks, Laura.

[22:34:58]

COATES: So, I mean, Areva laid it out. Guilt or innocence, the Kim Potter trial jury is not alone in asking that question right now. So are the juries for the Ghislaine Maxwell and Elizabeth Therano's -- Holmes case, excuse me. Stay with us.

(COMMERCIAL BREAK)

COATES (on camera): Justice asks the tough questions. Who deserves the benefit of the doubt? Is the 20-year-old driving with an air freshener on his rearview mirror who you discover has a warrant or the more than 26-year police veteran with extensive training who kills him when she mistakes a firearm for a taser.

Who was exploited? Is it the teenager allegedly coerced into performing sexual acts with an old millionaire and his female companion who allegedly groomed her, or a woman who says she is being scapegoated for the actions of a man who committed suicide awaiting his own trial?

[22:40:06]

I wonder, who do you see when you look at Elizabeth Holmes? An impressionable woman manipulated by an abusive lover into believing her technology actually worked? Or a technical savant who duped a who's who list of gullible investors.

And just who do you consider a victim? Someone who doesn't want to be held accountable for their mistakes or the person who has had to pay dearly for that mistake, sometimes with their own life. I wonder who deserves your sympathy, the person who cries on the stand or the person for whom so many tears have been shed?

And as for second chances, well, second chances are a luxury of the living. You know, across the country jurors are being asked to choose either or, guilt or innocence, right or wrong, and we expect objective decisions made from binary choices in a world filled with bias and subjectivity when at times you know those choices are motivated by how you relate to the defendant. That old, that could be me. Or motivated by the prejudice you may

exhibit towards or maybe the blame you assign to the victim, the old that would never be me.

Look, these questions are difficult. The answers even harder, but in our system of justice, an answer is due. And here's one more for the court of public opinion tonight. Which does justice require more, sympathy, or impartiality?

I want to bring in Robert Hirschhorn, he's a jury and trial consultant. Robert, welcome back to the show. I'm glad to have you here tonight.

Because, look, there are three big trials with juries who are out right now deliberating, and lawyers often say their case can be won or lost on the voir dire, the jury selection process. You are a consultant on this very issue. How critical does that usually end up being when you see the deliberations stretching maybe into days?

ROBERT HIRSCHHORN, JURY & TRIAL CONSULTANT: Yes, absolutely. Laura, thank you so much for having me back, you're doing a great job as always.

COATES: Thank you.

HIRSCHHORN: They call it jury duty for a reason. It's really hard. None of us want to be in that position of the jury. Here's what I can tell you in all three cases, they're taking their responsibility seriously. They're not letting the pressure of Christmas and family get in the way of them doing their civic responsibility.

The fact that in the Potter case that the jury indicated they might be hung, that tells me that this jury, like all juries, they want to try to reach a verdict if they can, and I believe that each of these juries are most likely going to reach a verdict in each of these cases.

COATES: Well, I hope so. I mean, that's the thought. I mean, prosecutors want them to reach a conclusion. The defense wants a conclusion. You want to have some finality attached to it either way.

HIRSCHHORN: Right.

COATES: And you've got a big question for any defense team. Right? The question they have normally is do you put your client on the stand? I mean, in these three trials between Holmes and Potter, they testified, Maxwell had said that she will not do so saying that the prosecution has not met their burden. There's no reason for her to do so, she said.

Is that the right call? To call them on the stand to have them there?

HIRSCHHORN: Yes, all three made the right call, Holmes had to testify to put her defense that she was being manipulated by the much older boyfriend, so she had to take the witness stand for her case. In Potter's case, Potter absolutely had to testify. She's a police

officer who shot somebody. In order for you to understand kind of what the perspective is for her, she had to testify.

And then in terms of Maxwell, she would have been roasted on the witness stand if she had gotten up there. Her lawyers made absolutely the right choice because in that case, the question is Maxwell a predator or a victim, right? Is she the girlfriend and the wing woman for that monster Epstein? So, is she Mrs. Monster, or is she just a victim too?

So, she absolutely made the right call. The lawyers totally made the right call in the Maxwell case by her not testifying, and the other two they had to testify to have any shot at a jury finding them not guilty.

COATES: Well, I guess it remains to be seen if the juries actually think they made the right call by virtue if they get acquitted or not, right? The defense counsel will say, great call if there's an acquittal, miscalculation if there's not.

But I want to talk about Potter in this case because here's a part of her cross examination. Listen to this.

(BEGIN VIDEO CLIP)

[22:45:00]

UNKNOWN: You didn't make sure any officers knew what you had just done, right?

KIM POTTER, FORMER MINNESOTA POLICE OFFICER: No.

UNKNOWN: You didn't run down the street and try to save Daunte Wright's life, did you?

POTTER: No.

UNKNOWN: You were focused on what you had done because you had just killed somebody.

POTTER: I'm sorry it happened. I'm sorry.

(END VIDEO CLIP)

COATES (on camera): I mean, the prosecutor was able to point out her mistakes, but she also got very emotional and expressed remorse, the sorrow. And then is, again, a case they don't have to prove intent. What stands out more to a jury here, the pointing out what she did wrong or the emotional response that it might evoke from the jurors themselves?

HIRSCHHORN: Emotional response. Look, Laura, these are split second decisions that occurred. There's no intent that this officer -- and by the way, we all know being a police officer is a really difficult job. Everybody knows that, and in all my years as a jury consultant, juries really want to give the benefit of the doubt to police officers because their job is so difficult, but the fact that that police officer got on that witness stand and started crying, those were not crocodile tears. Those were the real deal. I think that's going to weigh real heavily on the jury.

Now remember, there are some jurors that have a real -- the charge in this case is not murder. It's manslaughter. Was it negligent? Did she accidentally -- you know, she intended to cause some injury to him, but she didn't intend to kill him. That's first-degree manslaughter. That's why this jury is struggling so mightily with the case.

You've got the law that says it looks like if you've made a mistake, you're still responsible. On the other hand, you've got a really difficult job and a really emotional defendant. This, none of us want to switch places with that jury. That's why they call it jury duty. They got a really difficult job, and I really hope they are able to reach a decision.

And Laura, if they're not, that's a decision too. It just means that a jury wasn't able to reach a verdict because this was a really close and a really difficult case.

COATES: Well, I wonder if jurors will agree with you that they weren't crocodile tears and believe in the sincerity of her emotion. That remains to be seen. But I do want to end on this. And that, you know, the benefit of the doubt that is extended to police officers and the idea of the reason why they're able to have the weapons and the ability to arrest and stop is because there is an elevated expectation that they can rise to the occasion and grapple with the stress, grapple with the split-second decisions and make the right call.

I'm curious to see how this jury comes down on this very, very important notion. And again, at the end of the day, either way Daunte Wright will not be home for Christmas. It's a very difficult case for everyone involved. Thank you for your time.

HIRSCHHORN: It's tragic.

COATES: I appreciate it. It is tragic. Well, --

HIRSCHHORN: Happy holidays to you, Laura.

COATES: Thank you, and happy New Year as well.

HIRSCHHORN: Thanks.

COATES: You know, he won't participate. Another Trump ally refusing to cooperate with the committee that's investigating the January 6th insurrection. So, will his own colleagues subpoena a congressman? Congressman Scott Perry? We'll be right back.

[22:50:00]

(COMMERCIAL BREAK)

COATES (on camera): So, there are new developments out of the House select committee investigating the January 6th insurrection. Republican Congressman Scott Perry is refusing to sit down and answer the panel's questions. Plus, the committee is not ruling out criminal referrals for former President Trump, and of course, his allies.

Let's dig in with our CNN legal analyst Elliot Williams. Elliot, good to see you. Lots to get to tonight.

I mean, Perry is now slamming the committee, he's calling it illegitimate. It's almost like he is daring the committee members to subpoena him. And mind you, he is a member of Congress. Will they subpoena him? Will they try to hold him in contempt?

ELLIOT WILLIAMS, CNN LEGAL ANALYST: Yes, they very well might. Look, this whole idea that congressional committees shouldn't go after their own comes from a day that does not exist anymore in Congress. This idea that there would be a huge bream of decorum to subpoena a member of Congress or call him to testify.

Look, he is thumbing his nose at a duly authorized congressional committee. And just look at the statement he issued, Laura, where he talked about Afghanistan and he talked about the border bringing in all kinds of other things that had nothing to do with January 6th. He is just defying, openly defying the committee here and ought to pay a consequence for it.

COATES: And again, right now it's a voluntary request, it's not yet the subpoena, right?

WILLIAMS: Right.

COATES: But I mean, that's obviously on the horizon here. Well, Michael Flynn already has had the other side of that. I mean, he is now suing the January 6th committee. He is the eighth person to do so, by the way, including Trump, himself. So, what's the strategy here? Are they hoping to be able to bog down the committee and run out the clock?

WILLIAMS: Yes. It's really delay and trying to slow things down. Look, there aren't really many useful lawsuits that somebody can bring to go after the committee. What they are doing often is challenging and saying that it's not an official, again, duly exercised or authorized committee of Congress.

That's not true. Courts have already shot that idea down. Number one. Number two, what they're attacking is that the committee doesn't have the authority to issue subpoenas for phone records, and courts have shot that idea down, too. So, these are largely frivolous lawsuits or at least lawsuits that aren't going to win that are just designed to slow everything down.

COATES: I mean, it's stunning to think a member of Congress saying there's not a legitimate exercise of oversight --

WILLIAMS: Yes.

COATES: -- and authority here. But you know, Trump is also announcing he's going to hold a press conference, Elliot, on, of course January 6 at his Mar-a-Lago resort. Clearly, it's going to be a huge contrast. The other commemorations and memorials scheduled that day.

[22:55:02]

Is this another attempt to try to whitewash what happened and have his spin on it or a perpetuation maybe of the big lie?

WILLIAMS: Yes, it really is, and exactly what you said, Laura. This is right after the speaker of the House had announced that the House of Representatives would have a solemn moment. Look, you can dispute the politics of how committees are set up and who is where and, you know, we're in a partisan environment. I understand that. You understand that.

There was violence on the grounds of the United States Capitol. So back to Scott Perry the congressman you were talking about, he voted against giving the congressional gold medal to police officers who defended the capitol that day.

So, this isn't just about bickering about how the committee ought to have been structured. They, you know, simply are not standing with law enforcement --

COATES: Right.

WILLIAMS: -- and not standing with keeping their own work place safe. And keeping our government free from insurrection and attacks.

COATES: Elliot, so true. I appreciate your time.

WILLIAMS: Of course, thank you.

COATES: And speaking of the issues of justice or injustice I want you to know I have a new book on the way, it's called "Just Pursuit: A Black Prosecutor's Fight for Fairness." It's available for preorder wherever you get your books right now. And in it I break down how really the very pursuit of justice can at times create injustice.

And if you read it, you'll get to know me on a more personal level as well.

Hey, thanks for watching, everyone. Our coverage continues.

(COMMERCIAL BREAK)