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Don Lemon Tonight

FDA Gives Green Light To Pfizer's Paxlovid; Two POTUS' Words Of Love; COVID-19 Exempts No One; No Decision Yet For Kim Potter's Case; January 6th Committee All Eyes On Rep. Jim Jordan. Aired 10-11p ET

Aired December 22, 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): You know what, I don't have enough time for social media tonight because Laura Coates is on the on-deck circle and her program on behalf of Don Lemon starts right now.

LAURA COATES, CNN HOST: Thanks, Michael. What an interesting question especially the idea, I wonder if you gave that same survey a year ago how would it compare to right now. People seem to change their minds with the fatigue setting in, I wonder if it has changed their views on this issue as well.

SMERCONISH: Well, I've asked the same thing about the monoclonal antibodies, I hope I have said that right. I mean, two people show up hypothetically, one is vaxxed and one is unvaxxed, I feel like we are rewarding bad behavior if we go with the unvaxed. Just my two cents.

COATES: Well, I mean there has been a whole carrot stick approach for almost two going into three years now, which one is going to win out.

Smerconish, nice talking to you.

SMERCONISH: You got it. See you.

COATES: This is DON LEMON TONIGHT, and I am Laura Coates in for Don.

Breaking news tonight, President Biden's on the defense about the lack of a sufficient number of COVID tests in the country. As the highly contagious Omicron variant spreads rapidly across the country. Americans standing in line outside in the cold winter air or sitting in their cars, sometimes for hours just trying to get tested as they prepared to spend the holidays with families and friends.

Now the president acknowledging his administration is struggling to meet the growing demand. But he is denying that it dropped the ball.

(BEGIN VIDEO CLIP)

JOE BIDEN, PRESIDENT OF THE UNITED STATES OF AMERICA: No, I don't think it's a failure, I think you could argue that we should've known a year ago, six months ago, two months ago, a month ago, I have ordered half a billion of the pills. Five hundred million pills. I'm assuming 500 million test kits that are going to be available to be sent to every home in America if anybody wants them.

But the answer is yes, I wish I had thought about ordering half a billion pills two months ago before COVID hit here.

(END VIDEO CLIP)

COATES (on camera): Now, he meant to say half a billion tests, but speaking of pills, there are some good news today on that front in the fight against COVID-19, the FDA authorizing Pfizer's anti-viral pill, and it is the first of its kind, which is called Paxlovid. It's designed to treat infected people now at home when they are experiencing mild to moderate symptoms and before they get sick enough to be hospitalized.

That should help ease the severe strain COVID is putting on our nation's hospital systems. Because tonight, nearly 70,000 Americans are hospitalized with COVID. And most of them, unvaccinated. The daily number of new cases are spiking, now over 151,000 per day. That is a 24 percent jump just over last week.

And the number of people dying from the virus each day? That's also on the rise again.

I want to go first tonight to Dr. William Schaffner, he is the medical director of the National Foundation for Infectious Diseases. Dr. Schaffner, I'm happy to see you tonight, but this is concerning to some degree, right?

I mean, the president is saying, doctor, that the testing issues weren't -- they're having a -- are not a failure, and saying that nothing has been good enough yet, but was the administration, do you think, banking too much on either vaccinations or the confidence or the running towards the vaccine to get us through this winter? Or did this variant truly, Dr. Schaffner, take everyone by surprise?

WILLIAM SCHAFFNER, PROFESSOR OF INFECTIOUS DISEASES, VANDERBILT UNIVERSITY: Laura, I think it's a combination of both things. Yes, we all wish we had been smarter about testing, but clearly, Omicron surprised us and came on us and is so much more contagious than any of us really would have imagined.

And in that context, at the holiday season where people want to meet with their families and get together at reunions, the need for testing and the desire for testing just skyrocketed. I don't think any of us could have anticipated that. But that said, I like your optimistic note, Paxlovid has indeed been approved by the Food and Drug Administration and that is a little ray of sunshine.

COATES: Dr. Schaffner, it certainly is. I do wonder though, do you think to a certain extent that people will look at this and say, you know what, if there is a way to treat it, then why vaccinate? Is that a risk people are thinking about trying to mistake that the pill is somehow a substitute for vaccination and prudent vaccination and testing?

SCHAFFNER: Well, we do like pills in the United States, and I have already heard people express that very same point of view that now there is treatment we don't have to get vaccinated, which I think is a false concept.

[22:04:55]

Prevention first, treatment second. Why would you want to get an infection and have the risk of getting seriously ill when you could have prevented it on the front end. And you know, getting Paxlovid is not like getting to a machine and getting a candy bar, it takes a series of events.

First of all, you have to be tested to find out that you are positive, and look at all the problems we are having with getting tested, then you have to get that result quickly to a health care practitioner and get a prescription, and of course, that doctor or that other health care provider has to assess you to see whether you are eligible for the medication. Not all of us will be eligible, so there are those issues plus potential side effects of the drug in some people. There are some cautions there.

So put all that together, I would much rather get vaccinated and prevent the disease or make it much milder on the front end than have to cope with treatment on the back end.

COATES: Making the case that again, prevention is better than cure and there is not that straight line from, you know, a to z here. Dr. Schaffner, your colleague Dr. Fauci is laying out what we do know now about Omicron just today. Let's talk transmission, because he is confirming that the variant is as you say, highly transmissible making up at least 70 -- 33 percent of cases in the country, and could even account for I'm understanding 90 percent of cases in some states.

I mean, Omicron wasn't here even a month ago, and now it's the dominant variant, how concerning is this for people?

SCHAFFNER: Well, it's absolutely stunning that we have a virus mutation, a variant, that could exceed even Delta in its transmissibility, in its being contagious. But clearly -- clearly, Omicron has done that and it's taking over, it's out running Delta, it will, by the first of the year, clearly be the dominant strain across the United States and all corners of our country, I am sure.

This is concerning. Now, and addition to its contagiousness, there continues to be debate about how seriously ill --

COATES: Right.

SCHAFFNER: -- this variant can make us, and there are data on both sides of the question, we shouldn't take refuge in the hope that it makes you less seriously ill. I promise you, this variant in an unvaccinated person can put that person sick, really sick in the hospital, so let's get vaccinated.

COATES: I mean, there is a transmissibility, there is the severity but if Omicron is so contagious that many people -- many more people can get, that it wouldn't negate the benefit of it being generally less severe. In other words, is the prevalence of it enough to cause concern even if the severity of it is not?

SCHAFFNER: If it spreads to many, many people even if it makes a small proportion ill, that is still an awful lot of people who will get sick, be in the hospital, stress the health care system, never mind being a threat to their lives and causing agony to their families and friends.

So yes, I keep coming back to vaccination. People who haven't got vaccinated, get that first dose, those who are eligible for boosters get theirs, and parents, let's bring in the children five and older. They are all eligible for vaccines right now.

COATES: Well, let's talk about what Dr. Fauci says about how vaccines are holding up now against Omicron. We're talking about the necessity of getting vaccinated, he says that two shots of Pfizer or Moderna are not enough on their own to protect against Omicron, and the protection from two shots, well, it wanes overtime.

So, a third of fully vaccinated adults have already been boosted. Is it time to now change the definition of what it means to be fully vaccinated given all of this, Dr. Schaffner?

SCHAFFNER: Well, certainly in our mind we ought to think of this as a three-dose series. Yes, we've had our first two doses, but in order to complete the series, we need the third, the booster in order to secure our protection for a longer period of time and to solidify that protection.

That's clearly important, we need to all get that into our minds. Get the third dose

COATES: Again, prevention better than cure. Dr. Schaffner, thank you for your time. Nice speaking with you.

SCHAFFNER: Thank you.

COATES: Now I want to bring in senior -- CNN senior commentator John Kasich, the former Ohio governor. Governor, nice to see you this evening. How are you doing?

JOHN KASICH, CNN SENIOR COMMENTATOR: Hey, Laura. I wasn't -- he was -- he was so good. I'm sitting here and listening to him, he was like, he was so clear and so good. I hope he's proud of himself for his appearance tonight. It was -- I thought he was very effective, and I hope you agree.

[22:10:03]

COATES: I do. Shall I go back to him instead of you, governor. Because you know, we can cut your whole segment if you like.

KASICH: It might -- it might be better, whatever is going to help people.

COATES: No. You know what, I've already said goodbye, but he is incredible. And the information is so powerful, and hopefully it counters the misinformation that's out there.

I want to turn to you, though.

KASICH: Yes.

COATES: I'm glad that you are here, governor.

KASICH: You think good.

COATES: Because something that feels like a bit of a Christmas miracle, President Biden and his predecessor are trading praise over the vaccines. Listen to this.

(BEGIN VIDEO CLIP)

BIDEN: Thanks to the prior administration and our scientific community, America is one of the first countries to get the vaccines. Yesterday, former President Trump announced he has got his booster shot. Maybe one of the few things he and I agree on.

(END VIDEO CLIP)

COATES (on camera): And then, continue with a miracle of sorts. Former President Trump telling Fox News, quote, "I'm very appreciative of that. I was surprised to hear it. You know, it has to be a process of healing in this country, and that will help a lot." Pretty remarkable exchange on that. What are your thoughts, governor?

KASICH: Well, I intend to watch "Miracle on 34th Street." This was a miracle on Pennsylvania Avenue. And it's one, look, it's one we welcome, Laura. You know, I mean, it's great these two guys are talking. It's great that Trump went out and got his booster that, and actually as critical times I've been of him -- as him, he did a terrific job in terms of investing the money and getting the vaccines put together.

And so, I'm glad he got credit. That's the way it ought to work in our country. Now, this is not going solve all problems. Everybody thinks that people who aren't vaccinated they're all Trumpers, that's not really true. There's a whole group of people out there on both the right and the left who don't believe in these vaccines.

But every little bit helps in terms of getting people to get their vaccine, but mostly, and you said it earlier, it's not enough to just have to, you got to get boosted. Because what happens is that these vaccines, they lose their effectiveness. And what the booster does is it boosts it back up again. That's the name boosters.

So, I'm very glad that they cooperated on that, and I think that's a nice Christmas present for a lot of Americans that have been undecided.

COATES: You know, it is. But let me follow up with a "Miracle on 34th." Let me tag on that Santa Claus beard for a second, because it's good news that Trump does seem to be coming out in favor of the vaccines and the boosters. That's true. But we are two years into this, and for most of that time, he was saying things, well, like this, governor.

(BEGIN VIDEO CLIP)

DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES OF AMERICA: I said supposing you brought the light inside the body in which you can do either through the skin, or in some other way. And I think you said you're going to test that too. It sounds interesting.

UNKNOWN: We'll get the right folks who could.

TRUMP: Right. And then I see the disinfectant that knocks it out in a minute, one minute. And is there a way we can do something like that by injection inside or almost a cleaning. Because you see it gets in the lungs.

(END VIDEO CLIP)

COATES (on camera): I mean, there's that. And then there is obviously what's happened when he has talked about may be allowed parts of his base to think that the vaccine was, you know, the persona non grata, so to speak.

Is his message too little too late right now? Or, governor, is the miracle that there still might be people who will listen.

KASICH: Well, there may be some people who will listen. But you know, Laura, it's -- you know, what he -- think about when he came back when he had COVID. Instead of standing at the White House and saying, you know, look, I mean, I'm the toughest guy in the world but it got and almost knocked me out. And by the way, wear a mask.

And then later to insist on people getting vaccines, it could -- it could be a much different world today. But that's only speculation. I believe it would have made a difference. What he's doing now better, you know, I'm glad he is doing it, and let's give him credit for it. And let's give Biden some credit for having the humility to give him some credit.

So, look, that's the way political systems need to work, and we're fighting a big, common enemy. And when we're united, we're going to do better than when we're splintered, and casting aspersions on any of the kind of treatment that we ought to get. So, you know, let's count our blessings.

COATES: Well, give credit where it's due, it's absolutely true. I mean, the era of good feelings between Trump and Biden, well, I mean it might be short-lived. Because this was the president's response --

KASICH: Yes.

COATES: -- when he was asked by ABC tonight, about running for reelection. Listen to this.

(BEGIN VIDEO CLIP)

DAVID MUIR, ANCHOR, ABC: And if that means a rematch against Donald Trump?

BIDEN: You are trying to tempt me now. Sure, why would I not run against Donald Trump being the nominee? That would increase the prospect of running.

(END VIDEO CLIP)

COATES (on camera): It would increase the prospect of running. I mean, you supported President Biden last time, governor. Would you support him again, if he were to run against Donald Trump again?

KASICH: Wait -- we're -- look, I supported a guy who is much different than the Joe Biden I see today. And I think that's part of his problem today. Joe is not showing passion, the passion that I think he has in terms of connecting with the other side, bringing people along.

[22:15:05]

And the other thing, Laura, that concerns me, and it concerns me as an American. And I, you know, Republican is very not important to me, as it compares to being an American.

Joe Biden needs to appear much stronger. His interview tonight, it was still confusion. If you are going to go on network television, know the difference between the pills and the tests. I mean, we just got to see him stronger. We've got to see him more clear, and we've got to see more passion from him.

You know, we are only one year into his presidency. We got three more to go, and we all have to hope for the best, for whoever the president is. And the fact is, is that he really needs to step it up, and his people need to stop kind of hiding him, and let him get out there.

Because people were saying, Laura, you hear it, I hear it. Well, is he really, does he know what's going on? Is he really in charge? He needs to show it. I believe he is. I believe he's an intelligent man, but he's got to be stronger.

COATES: Well, he is the president of the United States and who surrounds him of course has to support and fortified that same perception. We'll see what the American people think about that. Thank you, governor.

KASICH: Yes. Thank you. Thank you, Laura.

COATES: I want to tell you there is more breaking news out there. Congressman James Clyburn revealing tonight that he has now tested positive for COVID-19. A breakthrough case. South Carolina Democrat whose House majority whip says, that he's fully vaccinated, and he is also asymptomatic.

This diagnosis comes less than a week after Clyburn was with President Biden at his al mater at South Carolina State University' commencement ceremony. Congressman saying tonight, quote, "America is in a new phase of this

pandemic. No one is immune. I urge anyone who has not done so to protect themselves by getting vaccinated, and boosted." Wishing our best wishes to Representative Clyburn tonight.

And three days in deliberations, and now, no verdict. The jury in the trial of ex-police officer who shot 20-year-old Daunte Wright. At one point signaling that they might not be able to make a decision. The attorney representing Wright's family tells us what they are thinking about all this. That's next.

[22:20:00]

(COMMERCIAL BREAK)

COATES (on camera): Tonight, still, no verdict. The jury wrapping up day three of deliberations in the manslaughter trial of former Minnesota police officer Kim Potter. She says she mistook her firearm for her taser, when she fatally shot Daunte Wright.

Joining me now Jeff Storms, he's an attorney for the Wright family. Jeff, nice to see you, but it must be a very difficult time for this family. I mean, tell us about how Daunte Wright's family is feeling right now, we're coming up a major holiday, and of course, they know that there has yet to be a verdict in the case that is so impactful to them personally.

JEFF STORMS, WRIGHT FAMILY ATTORNEY: Well, Laura, an experienced lawyer like yourself knows that it is agonizing for attorneys, let alone a family in this situation. You know, every single second that goes by is an incredible struggle for the family, particularly given that they have paid very close attention to the evidence.

And the feeling a lot of us have is that, you know, we have concerns about what you would know to be as jury nullification. You know, concerns that a jury is going to make their decision based upon something other than the law, because that was very much the strategy here. And that aspect and dwelling on that is certainly agonizing for the family.

COATES: Did the family have a reaction to the, really that emotional moment of testimony from Kim Potter. I'm wondering while I was watching it, what was going through the minds of the family? I mean, obviously, there is that notion of jury nullification, sympathy towards the defendant, but of course tears have been shed for their son, Daunte Wright. And so, what was that like, if you know, to watch that moment.

STORMS: Yes, I don't think any family member left that room feeling like those tears were genuine and for the loss of Daunte Wright. More so than they were a reaction and tears, or you know, supposed tears, really stemming more from Kim Potter's fear that she is going to be held accountable for her unlawful actions.

COATES: So, on that note of accountability, I mean, were you worried at all by the jury's question about what happens if they cannot reach a consensus. I mean, there wasn't another question today I understand, but what do you think is behind the potential split, perhaps, between these jurors?

STORMS: You know, I think as you know, Laura, that's not an unusual question, early on in deliberations, which that was. You know, when you start to get really nervous as a lawyer is when you start getting notes from the jury that lead you to believe that there is no chance that this jury is going to be able to reach a resolution.

So given the stage that that came, I think that, my advice is always to clients in this situation not to read too much into that at this point. Particularly given that the other two questions show us that the jury was likely carefully analyzing impeachment evidence, and evidence related to a critical theory of the case, the physical construction of the gun. So that shows us that we have an active, intelligent and working jury at this point.

COATES: Well, first the impeachment related evidence, you mean the idea of trying to cross reference her statements on the stand to what she did or did not remember with a psychologist at one point during the trial as well, and the idea of the evidence. I mean, this comes down to, as you're talking about the idea of, was it reasonable, was it reckless, was it culpably negligent to mistake one's firearm for an obviously distinct taser?

And the question they've asked, the jury asked the question to have the zip ties remove from Potter's gun so they can actually hold it. I mean, they are trying to put themselves in her shoes, I guess, by doing that. Is that, in your mind, to her benefit or to the benefit of the prosecution to have them deliberate what the distinctions may have been?

[22:25:00]

STORMS: Well, you're right on point, Laura, on both of those pieces and to get to the gun aspect of it, you know, personally, I think it benefits the prosecution. Because those of us who have observed both weapons, touched both weapons know how both weapons operate, you know, we are hopeful the jury is going to see what we heard explained through expert testimony and what we can see with our own eyes, you know, its negligence, culpable negligence, it's reckless and if not more to say you made a simple mistake and confusing those weapons. That shouldn't happen.

COATES: I mean, this killing of Daunte Wright came during the middle of another extraordinarily high-profile trial, the trial of Derek Chauvin and it's noteworthy that this officer also resigned after doing this act.

And I wonder with all of the temperatures all the thoughts in Minnesota, you've got Philando Castile, you've got, you know what has happened to Daunte Wright, you've got what's happened to, of course, George Floyd and many more in between, unfortunately.

What is your message to the public if the jury reaches the decision that you do not believe is just or on the, perhaps, maybe unlikelihood or likelihood that one is not reached at all? Is there a message you want to convey to the community about what this would mean to your clients to the family of Daunte Wright?

STORMS: You know, with respect to the community I do want to wait and see what that decision is. But I actually want to focus more on prosecutors. I hope that prosecutors around the country continue to have the courage to charge these types of cases because even if they were in acquittal in a case like this, no one can doubt after having seen the evidence that this is a very worthy trial and a Kim Potter should have been held accountable for her actions in a court of law by a jury of her peers.

So, if this does not come down the way we wanted to, I certainly hope the community continues to engage in its efforts to support holding law enforcement accountable and that the government continues to show courage in the prosecution of these cases.

COATES: Courage is the right word, and also just prudence, you are right about thinking about criminal justice reform, it takes conversation around what is a reasonable use of force? What is the benefit of the doubt we extend to police officers, or should withhold? And what standards they must be held according to their own actions even if intent is not a requirement in the law in this instance here.

Thank you for your time, and please extend my deepest condolences to the family of Daunte Wright, trial or no trial, they want their son.

STORMS: We appreciate that, Laura. Thanks for the time tonight.

COATES: Thank you. Well, there is no verdict yet in the Potter case, and no verdict in the Ghislaine Maxwell case. And there is no verdict in the Elizabeth Holmes case. What will the juries decide? We'll talk about that, next.

[22:30:00]

(COMMERCIAL BREAK)

COATES (on camera): So, all eyes are on jury rooms across the U.S. In Minnesota, the jury is still out in the trial of former police officer Kim Potter. In New York, a jury is now on a four-day break in the Ghislaine Maxwell sex trafficking trial. And the jury in Elizabeth Holmes' Theranos trial will be back deliberating tomorrow.

Joining me now is CNN legal analyst, Joey Jackson. Good to see you, Joey.

You know, this has been quite a week of trials and waiting, and waiting on jury watch, all this time. What do you make of the fact that there is still a jury out and the Potter trial, and no notes, no questions today? Take me inside that room with the mind that you have, what's going on?

JOEY JACKSON, CNN LEGAL ANALYST: Yes, sure, Laura. Good to be with you of course as always. Look, what happens in Potter I think is that there's a clear distinction, right? On the one hand, I think the defense's maybe case that this was a terrible mistake, she feels so badly about it. And put her on the stand, she really felt things right, right? She had the aura of authenticity, and I think the jurors in there who are not going to convict or who are loathe to convict were saying she's an officer, she made a mistake, she deserves the benefit of the doubt.

On the other hand, I think these jurors who want accountability will say, now listen, she testified. She indicated it was a mistake. She indicated she didn't mean to use deadly force. She said she was sorry. She said, she, you know, really should have known the difference.

She essentially admitted, Laura, to every material element of reckless conduct, in addition to culpable negligent conduct. So, I think this is clashing as faction on the one hand of saying the prosecutors have proved the case. Twenty-six years, she's trained in this all the time. She is a trainer herself.

There's a distinction between design, et cetera, with respect to the taser. She should have known better. She's getting convicted. And then you have the other side who says, you know what, not so fast. It was an honest mistake. We like her. We can relate to her. Let's do jury nullification, which of course as you know, is allowing, excusing the behavior, and let's send her home. And I think really that's the fight, and that's why we haven't heard boo today, at least, with respect to that case.

COATES: That phrase, loathe to convict, it keeps popping in my mind when you say that, because I think it's important for the audience to understand that even though they may be loath to convict and one of the reasons may be, maybe it's an easier case for them if the prosecution had to prove intent.

But as you and I know, when it comes to both of these charges, intent is not what needs to be proven. It's an element of either crime, it's about what was foreseeable, it's about whether you created an unreasonable risk. And I think that's very confusing sometimes to jurors when you've got a manslaughter charge.

The idea of saying, hold on, do you mean somebody could not intend something and still be held accountable? We do it all the time in the law. Is that right, Joey?

JACKSON: Yes. You know, it's such a great point that you make, Laura. Because when people think about someone dying at the hands of someone else, you think about intention, deliberation, premeditation, et cetera.

[22:34:58]

But of course, we know that not all crimes, right, require that element of deliberation intentional conduct. Instead, they require something else like this, which is the distinction between first degree and second-degree. What you reckless with respect of the fact that you used the taser, or meant to use the taser, but used the firearm instead. And if you aren't reckless, which gets you 15 years, were you at least

negligent. That is careless with regard to that. And if the jury concludes that, she's convicted. And again, I do believe that there are jurors that are saying, of course she was. And then you have those other jurors that are saying, well, she may have. But we've heard from psychologists, and the psychologist said that people who really could be experienced can make this mistake. It happens all the time.

You saw her testify. She didn't need to do it. And I think that's the fight, and that's why today we didn't hear people -- from anybody in the jury. At the other -- at same time, Laura, we know that people don't like to convict police in general. They think they're out there doing their jobs. So, I think they're really fighting hard to, you know, an appropriate the outcome. We'll see what tomorrow happens.

COATES: I mean, cops get the benefit of doubt all the way from the Supreme Court. It's codified in some of the most informational --

JACKSON: Right.

COATES: -- and informed precedent, right. I mean, let's turn to the Maxwell trial right now, though, Joey. Because that jury did ask for questions. They asked for more transcripts of witness testimony today. What are they zeroing in on when they're asking for this testimony? Are there trying to assess the memory, the credibility of the accusers? What's their focus do you think?

JACKSON: Yes. I think it has to be that. And here is why I believe that. Right? This is the case that hinges upon those four victims who were then girls, who were now young woman. And remember, this occurred between 1994 and 2004. What did the defense attack?

The defense attacked, number one, their motivations, as it related to money and settlements, et cetera. And the defense, in addition to attacking their motivation, money, money, money, also attack their memory. In fact, the defense called it an expert witness to talked about false memories. How things could be suggested? How things change overtime?

And so, the defense made such hay with respect to their inconsistencies. And in fact, taking it a step further, there was also an FBI agent, and there was other evidence which would suggest that when these victims had told the story earlier on, they did not indicate that Ms. Maxwell was involved.

And so, I think because the defenses targeted, and targeted those issues, they're really trying to see this, the jury, what do these victims say? Is it credible? Are there contradictions? Can we believe them? And should we convict her? And so that's precisely what they're doing, I believe, in that jury room.

COATES: Well, they're taking several days off now to come back, as you know, to come back and to deliberate. I want to turn to another trial, Joey. Elizabeth Holmes trial about Theranos. That jury is back tomorrow too. They're also up against the holiday. I mean, Christmas eve is Friday. Christmas on Saturday. What do you expect in that case? Will this become sort of Damocles? Will it be one to light a fire?

And obviously, we can always quibble about whether that's an all appropriate, and sort of rushed justice or deliberation for a holiday or any other event? But is this part of what the calculus might be for them?

JACKSON: You know, I really think so. And so that case is a bit different because remember, she testified for about 24 hours over several days. And of course, she's charming, and she's very convincing. This is the person who at 19 dropped out of Stanford, built a mega company, convinced, you know, some really high-profile people to join her.

She had former secretary of defense on her board. So, this is a person who can talk, and I think who is relatable. And I think the jury in that case has to draw the distinction. Did she exercise appropriate business judgment? And was she wrong? And what is these -- you know, look, no company of course when you put it out there is completely solid.

There's risk in investment, and that's what she's saying. That she acted in good faith. She exercised her best judgment. The prosecution, though, saying, you engaged in fraud. It was a deck of lies. You knew what you are doing. You are misrepresenting everything to people.

So, I think there's fighting over that. And finally, your point, it's coming up on Christmas. So do they, and there's 11 counts here so there's a lot to consider at the last point also were the jury actually ask to take home with them? Right? The 39, you know, count information they can look at it, and determine what she did and what she didn't.

And so, I think they're really focused hard on that, and while they want to have their Christmas, we all do. I think they want to make the right decision. So, let's see if that plays into their calculus when they run into a verdict, which will be soon.

COATES: We'll see, until then, we're drinking from a fire hose when it comes to jury watch and verdict watch these days. Joey Jackson, so nice to see you. Merry Christmas, if I don't talk to before that. But I'm sure, I'll probably pass to you before then anyway.

JACKSON: Thank you so much, Laura. Always a pleasure.

COATES: Take care. Take care.

And up next, a reminder for yet a branch -- for yet another branch of government that seems to think that it's above the law. I'll make my case about that after this.

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COATES (on camera): You know, no one is above the law. It's a phrase people once thought was reserved for the president. A reminder that even the head of the executive branch whose job it is to enforce the laws doesn't get to evade them.

Now it seems, however, that the phrase must be a reminder to those we entrust with not just enforcing those laws, but actually making them. Congress. And here we are, watching members of Congress continue to thumb their nose, and even their own colleagues. And pretend that they don't have to follow the laws that they have made.

Now we focused on the dangers of the big lie. Concerned about the potential for the electorate to doubt that we indeed do have fair and free elections. That there is still integrity in the world's role model for democracy.

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Propaganda and misinformation on that demands you to only believe in our electoral system, if your candidate wins. Well, that's just as absurd as it is toxic. But there's also a danger in another big lie. One not wielded by those lost elections, but by those who won them.

A sitting member of Congress who promotes the lie that Congress has no legitimate legislative or oversight function in investigating what led up to and what's occurred on January 6th, which was an attempt to prevent them from performing their legislative role in certifying the Electoral College, as was required under law by the way. And also, compelled by the people's vote.

As suggestion that Congress is somehow wrong, trying to figure out who played a role in an event that put our elected officials in grave danger. Well, that is also a big self-serving lie. Congress is inherently political, obviously, it is. But it is also expected to codify our principles into law.

Instead, members of Congress who refused to recognize the legitimacy of their own branch, well, they risk codifying what is antithetical to democracy. That those who make the laws are somehow above it.

Former FBI director, deputy director, Andrew McCabe is here. The committee investigating the insurrection wants to talk to GOP Congressman Jim Jordan, a key Trump ally. So, how long until he says no too? We'll talk about that, next.

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COATES (on camera): The January 6 committee is taking a voluntary interview with Republican Congressman Jim Jordan, a key Trump ally. Saying in a letter, it wants to learn more about Jordan's communications with Trump on January 6., as well as his discussion with White House aides and Trump's own legal team.

Let's discuss now with CNN senior law enforcement analyst, Andrew McCabe. The former FBI deputy director. Andrew, good to see you tonight. I hope you're doing well.

You know, look, Jim Jordan is now the second congressman the committee has requested to speak with, and we can't forget, by the way, what Jordan said when he was asked if he spoke to Trump on January 6th. Remember this?

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UNKNOWN: On January 6, did you speak with him before, during, or after the capitol was attacked?

REP. JIM JORDAN (R-OH): I have to go -- I spoke with him that day after. I think, after. I don't know if I spoke with him in the morning or not, I just don't know. I have to go back -- I mean, I don't know that -- when those conversations happened. But all I know is I speak with him all the time.

(END VIDEO CLIP)

COATES (on camera): The stammer heard around the world at that moment in time. We already know Jordan texted Mark Meadows on January 5th about blocking the certification on the 2020 election results. I mean, what do you think the committee wants to know about his communications with Trump. I mean, it seems obvious there was something he could tell them, right?

ANDREW MCCABE, CNN SENIOR LAW ENFORCEMENT ANALYST: There is a lot that he could tell them, Laura. So, a couple of things come to mind. First, any confusion that congressman might have about how many times he called him on that day, or when he called him on that day, could be easily rectified with a subpoena to his phone company, which provide records of all the incoming and outgoing calls on his phone. So, we can -- we can clear that up pretty easily.

The second thing that stems -- that really we're starting to hear, let's remember, what is the committee doing? They are trying to determine what's happened, what led to the attack on the capitol on January 6? So, imagine if you are doing that, and you, as part of that inquiry, you're trying to determine what the president was doing while the capital was being attacked.

And here you have a witness who says, yes, I think I was on the phone with him. I might have been on the phone with him during that time. Wouldn't you want to ask that witness a few questions about what did they talk about, what was the president doing, who else was there? So, it's a very, very legitimate inquiry and it's one that he'll -- I think he's going to have a hard time ignoring, you know, cleanly as it were.

COATES: Those records are going to help jug that memory. And I do wonder if the committee asked the question, that they might already know the answer too through corroboration they just want you to confirm or just try to explain maybe a way something.

But Jordan was also asked tonight, Andrew, whether if he -- whether he would comply with the committee, and he deflected. Saying he just got the letter today. Congressman Scott Perry has already refused to speak voluntary with that committee. So, if Jordan follows, should they be subpoenaed, Andrew? MCCABE: I think they absolutely should. I don't think there's any

reason on earth why, first of all, members of Congress should be treated any differently than any other citizen in this country. You know, from your own experience, Laura. I know from mine, anytime I get a request from a committee to appear before them to answer questions, when I was working with the FBI, I had to go up and answer those questions. And if I didn't, I would have been subpoenaed to do so.

I don't see why it should be any different from members of Congress, especially in this case, where Mr. Jordan has already told the media some of that information that he has to offer. That he spoke to the president on that day, maybe in the morning, maybe in the afternoon, we don't know. Hopefully, we'll find out.

So, these are -- these are items that he has already referred to. We know this is knowledge that he has. He should share it with the committee.

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COATES: And one step further, not only should he be subpoenaed, but he should also comply with that subpoena. And if he fails to do so, as you said, being treated like anyone else who fails to comply with a duly issued subpoena. That it's got to be the bare minimum on the floor and all these things.

Also, January 6th rally organizers we know are now suing the committee to block a subpoena over the phone records you've just referenced and alluded to. The same day, by the way, that Michael Flynn lost his legal challenge to block a possible subpoena for his own phone records. I mean, he just filed suit yesterday. Is this sort of a quick response mean something significant that the committee is not facing an uphill battle after all?

MCCABE: Well, I think it does. I think it certainly telegraphs that at least in the Flynn case there's not much to that -- to that objection to the subpoena. Right? And as we know, the standard for a subpoena is essentially simple relevance.

COATES: Right.

MCCABE: The subpoena needs only to be geared to be -- to collect evidence that's relevant to the inquiry that's underway. So, I find it hard to believe that any of these suits will ultimately prevail. But, what will they do in the meantime is delay. They will drag these procedures out. They'll force the committee into court --

COATES: Yes.

MCCABE -- and the subpoenas and that's a problem as the clock is ticking over these folk's work.

COATES: And so, our clock has come to an end as well. Andrew McCabe, nice to see you tonight.

MCCABE Thanks, Laura. You too. COATES: Thank you. And thank you all for watching. Our coverage

continues.

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