Return to Transcripts main page

Don Lemon Tonight

Women Outraged By The SCOTUS Draft; President Biden Attacks The GOP; "New York Times" Reporters Obtain More Audio Of House Leader McCarthy Denouncing Then President Trump After January 6th Capitol Attack; Heavy Fighting In Western Ukraine; Antony Blinken Tested Positive For COVID. Aired 10-11p ET

Aired May 04, 2022 - 22:00   ET

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

[22:00:00]

DON LEMON, CNN HOST: Listen, I wanted to interview him. I'm glad you got the interview as well. At least we had him on the air like your conversation with Jim Obergefell.

ANDERSON COOPER, CNN HOST: Yes.

LEMON: The plaintiff in the 2015 Supreme Court case legalizing same- sex marriage of course nationwide. He is concerned that this draft ruling overturning Roe could put that right at risk. What did you make of your conversation?

COOPER: Yes, you know, his argument is essentially, you know, Judge Alito voted against same-sex marriage in that, and that if it became before the court again, he says, if the, you know, based on the Roe ruling, that there is no reason that Alito wouldn't vote against again, and perhaps it could be overturned.

You know, some -- we had a Ross Douthat, also conservative writer who said he didn't believe that would be the case, that there is widespread support now for same-sex marriage, and that Judge Alito himself that Justice Alito has said that it's not in the same category as Roe v. Wade. You know, I don't know where the truth lies on this, but it's certainly something that a lot of Democrats are trying to push now, which is concern about other rulings that might be overturned.

LEMON: People believed the same thing about Roe, that it would never be overturned. So, who knows, Anderson? Yes.

COOPER: We'll see.

LEMON: Thank you, again, welcome back, good to see.

COOPER: Thanks.

LEMON: Thank you.

This is DON LEMON TONIGHT on another night of major developments on big stories all across the country and really around the world. We're going to tell you about all of it. First off, anger is spilling out in the streets again today over the

Supreme Court draft opinion that would overturn Roe v. Wade after nearly 50 years as law of the land. You are looking at live pictures there. I'm sorry, this tape from earlier tonight.

So, make no mistake, this could affect the entire country. And we are seeing a stark divide between those who care about the content of that leaked opinion and those who care more really about the leaker. Watch.

(BEGIN VIDEO CLIP)

SEN. ELIZABETH WARREN (D-MA): Really, you think the whole issue is about a leak? This is about five extremist justices on the United States Supreme Court, who, at least two of them swore up and down, that they cared about the rule of law and that Roe versus Wade was well settled law. And now, they are just turning around and saying, nope, not really.

SEN. DICK DURBIN (D-IL): It is a stunning reversal in American history that the court would take away a constitutional right after 50 years.

REP. CORI BUSH (D-MO): I think about what would have happened had I not had the ability to have an abortion, what would have happened to me, what would've happened to that child.

(END VIDEO CLIP)

LEMON: Republicans calling the leak itself the problem.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R-KY), SENATE MINORITY LEADER: You need, it seems to me, excuse the lecture, to concentrate on what the news is today, not a leak draft but the fact that the draft was leaked.

SEN. TED CRUZ (R-TX): Whoever did this leak should be prosecuted and should go to jail for a very long time.

SEN. MARSHA BLACKBURN (R-TN): For someone to betray the trust that they -- that has been placed in them to support the work of the Supreme Court of the United States, this is unprecedented.

(END VIDEO CLIP)

LEMON: So, what happens now is the question. What happens now? How much damage is all of this doing to the highest court in the land. And we have new audio tonight that you want to really hear. It's obtained by two New York Times reporters.

Kevin McCarthy discussing the 25th amendment on a call with GOP leadership just two days after the January 6th attack on the capitol, and saying it would take too long.

(BEGIN VOICE CLIP)

UNKNOWN: I think the options have been cited by the Democrats so far are the 25th Amendment, which is not exactly an elegant solution here.

REP. KEVIN MCCARTHY (R-CA), HOUSE MINORITY LEADER: That takes too long to. It could go back to the House, right?

UNKNOWN: Yes, correct.

(END VOICE CLIP)

LEMON: Who does the real Kevin McCarthy?

So, I want to get right through to the Supreme Court and that stunning draft opinion that would overturn Roe v. Wade.

Here to CNN senior legal analyst, Laura Coates, and former U.S. Senator, Doug Jones. Good evening to both of you. Good to see you.

Senator Jones, I'm going to start with you. We are hearing from senators concerned over the integrity of the court or whether some of the nominees were truthful in their confirmation hearings. Watch this, we'll discuss.

(BEGIN VIDEO CLIP)

SEN. LISA MURKOWSKI (R-AK): The concern about what it means within the court and whether or not people are trusting the integrity of the court, that should concern all of us in terms of confidence.

SEN. JON TESTER (D-MT): I don't think they were being honest.

MANU RAJU, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Why did you say that?

TESTER: I think most of them said that they were going to go with the past precedent. And that's not the case.

(END VIDEO CLIP)

LEMON: So my question to you, Senator, what would overturning Roe mean for the integrity of the Supreme Court?

FMR. SEN. DOUG JONES (D-AL): You know, Don, thanks for having me. And I think it means an awful lot because we have seen, I think an erosion of the integrity of the Supreme Court over the years. A lot of that is that Congress is making the confirmation process, some of it is the media is making, but a lot of it these days is the court.

[22:05:04]

Clearly, the court is becoming more and more embroiled in political issues. And clearly, signing on a partisan basis. I think that what you just heard from the conversations and the confirmation hearing at a couple of the justices had, where they made it very clear that this is not going to be an issue. It made a difference in some of the senator votes, at least a couple of the Republican senators.

So, certainly, this is a huge crisis of confidence in the court. And make no mistake, Don, it is based on the ruling, yes, the leak is a problem. It should be investigated, looked at, but the decision that is apparently coming out from the Supreme Court is an assault on women of America. And that is the biggest problem that the Supreme Court has right now.

LEMON: Well, let me jump in there, because is that -- is that, do we have a false idea about the Supreme Court? Isn't the Supreme Court inherently political because a liberal president, a Democratic president nominates if there is an opening, a more liberal judge. A Republican president nominates conservative judges, isn't the court inherently political and we keep pretending that it is not?

JONES: No, I don't think we are pretending that it's not. But certainly, the court has always had an element of politics because that's how they get to the court. But the fact of the matter is, as you look at precedent, as you look at stare decisis and how to go about looking at the cases that have established constitutional rights in this country for 50 years, I think if you take this court right now as a whole going back to the Shelby County versus Holder decision, going back to the principles that this court has done that has allowed dark money to come through.

Political gerrymandering, more importantly, I think right now, Don, you've also got to look at the court's use of a shadow docket. Those used to be reserved for death penalty cases. Right now, the court is making law based on very little opinions, some, no opinions, certainly, just a paragraph or two, not a full-blown hearing.

So, I think this court has a lot to look at itself because they are becoming more and more partisan. And that's the biggest issue, I think.

LEMON: Laura, I want you to weigh in. Let me read this out. This is a polling here, and then you can respond to what Doug said and then in your own response from what you hear as well. This is a Marquette University poll from March. It shows that 54 percent approve of the way that the Supreme Court is handling its jobs. That is down from 60 percent in July of just last year, 60 percent in 2020.

Between this possible ruling, Laura and the leak, why is this doing to the perception of the Supreme Court? What happens if people no longer faith in it?

LAURA COATES, CNN SENIOR LEGAL ANALYST: Well, unfortunately, at times, the court of public opinion, and that's where the electorate is, perception is king. And I think it really began, in part, that decline likely around what happened in Texas related to abortion.

Normally, if it was any issue that the Supreme Court had precedential value in, that you would assume that they would actually advocate and try to uphold it. And if they sought to eventually overturn it while it was still the law of the land, no one but the court should be able to interfere with it.

But you saw the end run around that precedent in Texas, I think you had more enough clues to suggest that perhaps this area would be part of the legacy where the electorate would say, well, hold on a second, I guess the precedent is only as good as the particularly curious or savvy legislative branch, which is not how it is intended to be.

But given those notions, given the perception of the court, there is this notion that you can overturn precedent, that is allowed if it is wrongly decided. I point to of course, Plassey versus Ferguson, separate but equal, the Korematsu decision involving Japanese internment camps.

The reason this is different is because of the amount of times that it has been reaffirmed, the reliance by society on these and also the connective tissue being a fundamental right, which, I remind people, fundamental rights are that which are falling within a zone of privacy where the government ought not to be able to interfere.

And it runs the gamut from who you can love, who you can marry, who you can be in a relationship with, certainly, the ideas as the court have said, abortion, contraceptive use, as well. If those begin to chip away, although Justice Alito has said that he is essentially trying to wall off and only look at abortion, it's very hard to un- ring that bell.

Because in a legislative branch, if you give a mouse a cookie, it's going to ask for a whole lot more. And any inroad into being able to chip away the fundamental right could invite further erosion.

LEMON: Laura, what is going to happen when this, the final ruling drops, likely at the end of next month? Is there still the possibility, the possibility that Roe actually takes a big hit, but isn't totally overturned?

[22:10:01]

COATES: That's always a possibility. Remember, this leaked draft memo was actually drafted back in February. A lot could happen. I reminded people that it is May. It could also be that only a couple i's are going to be removed, and t's uncrossed. So, it could very well be.

But the whole history of Roe v. Wade, the history of Planned Parenthood has been about that trimester framework, the balancing of rights from when the states has more compelling interest in the unborn child as they have said. The probability of potentialities of life they have said, versus what the rights of the pregnant women are, that is the course been expanded to talk about any undue burdens not being able to be places.

If they're talking about no longer the week at which you can regulate abortion, but it's an all-out ban that's wrongly decided, it could be that Roe v. Wade, if this final opinion is indeed final, could be gone, for as long as the legislative branch and Congress fails to codify.

LEMON: You are agreeing with that, Doug?

JONES: Absolutely, there is no question. And I really think that Laura is right. I mean, look, a decision a draft that was written in February and in May, I don't think it's a coincidence. I think that this is pretty much the decision. I can't give an idea of why somebody may have leaked this.

But clearly, I think that this decision is going to stand, pretty much as is. I could be wrong, but I think it's there and I think that as she said, the tea leaves are there, everything about this. And I think folks have to really be looking at this. It doesn't matter what Justice Alito says about this. This is only for this one case. It is not.

There are a lot of other cases involving a women's reproductive rights that are whining its way through the courts, including the way that Texas and now I think Oklahoma are creating this vigilante justice. All of those issues are going to be front and center as well. But this puts at risk so many of the rights that we have come to expect in this country, that rights that we have come to rely on in this country, and that's a real danger for us going forward.

LEMON: Doug, Laura, thank you so much. be well.

I want to bring in now Senator Gary Peters, a Democrat from Michigan. Senator, good to see you. Thanks for joining.

SEN. GARY PETERS (D-MI): Good to be with you, Don.

LEMON: So, access to abortion affects families, not just women, really. And you shared a story about your family's experience with abortion after your then wife had a medical emergency. Tell us what happened.

PETERS: Well, it is a story that I think people need to hear. It's a story that unfortunately impacts so many families all across our country. We had a situation where we had a child that we wanted. My first wife was pregnant, but in the fourth month, things went badly. Her water broke, we went to the doctor, the doctor examined her and said that there was no way that this baby could possibly come to terms. Amniotic fluid is not there to protect the baby.

And then he sent her home to have a miscarriage. She said I can't do anything now, there is a faint heartbeat, but there is no way that this baby will survive. But we need to send you home to wait for a miscarriage. But you can imagine the trauma, you can imagine the anxiety and the despair that was felt.

She went home, we waited all night, nothing happened. The next morning, went back to the doctor. The doctor said, again, faint heartbeat, I can't perform a procedure here, we're going to send you home again. Wait for a miscarriage, all over again, the horror of going through that.

The third day, we went back, and the doctor examined her and said, we've got to do something here, I'm afraid that you could go septic, I'm afraid you could lose the uterus if we don't do anything you could lose your life. But he did a check, he said there is still a faint heartbeat, I don't know why that's the case because the fetus shouldn't be living now. I will go to the hospital board and try to get approval to do an

abortion. And I will never forget, we went home, and he left a message on her answering machine. And I said I went to the board, he goes, I am dismayed the board refused my ability to do this. I'm afraid that this could get very serious, very quickly. You could use your uterus. You could lose your life.

You need to find a doctor right now who can perform a procedure at a different location. He said this is not based on medicine, it's not based on patient care, it's based on politics. And he apologized profusely.

Fortunately, we had a friend who was an administrator at another hospital. He got us in immediately to the head of the department, and that doctor examined my wife and said I have to do this procedure immediately. You are about ready to have serious complications. And had that procedure done.

But it was clear that if abortion is illegal, if Roe versus Wade is overturned, and in Michigan, all abortions is outlawed, we would be in a horrible situation and my wife at the time, she could have lost her life. This is something that happens to families.

[22:14:57]

In fact, when I share this story broadly, I had people all over the country call and say that there was a similar story that they had, and the anguish that they felt --

(CROSSTALK)

LEMON: And you shared it with husbands, these weren't -- these weren't just women, these were husbands who had to share very similar stories as you and your wife.

PETERS: Absolutely. It's a, you know, these are family -- these are family decisions, this impacts families. It affects not just women, but men as well. And the men who love those women. This is something that certainly had a major impact on lives.

I still I think about, it's still very hard to talk about. And the kind of comments that I heard from people around the country, it's very difficult for them to talk about it. And they were pleased to hear me talking about it, because it brought them at least some comfort that other folks go through this.

So, we just have to realize that this debate is very broad. It impacts families in so many ways. And this Supreme Court decision if it comes down the way it looks like it's going to come down, it will have a major impact in people's lives and it's not going to positive.

LEMON: Senator, listen, I imagine that you think that Roe v. Wade should be codified into law. Right?

PETERS: Yes.

LEMON: OK So what happens if you don't have the votes to do that? So what do you do?

PETERS: Well, we need more folks that can get those votes. That's why we have to win elections. There is no question that this will be on the ballot. You know, choice, the issue of choice is --

(CROSSTALK)

LEMON: But speaking of more votes. I mean, the story that you shared, I'm sure you had stories. Republican families, women and men and husbands and families, I'm sure are dealing with the same issues that you and your wife dealt with. Do they not think about this? And could you possibly win some of those people over by actually sharing their stories or at least appealing to them with what you had to go through, and possibly maybe they did as well?

PETERS: Well, absolutely. We, that's why I went public with the story to share it, and why other people are coming forward to share it. And I am talking to my colleagues as well about it. So, I hope that we can get the votes, we're certainly going to put those votes on the floor of the Senate. We will see where people are.

But folks have to understand that with Roe versus Wade, if indeed that's going to go away, there is no longer that protection in place. It's going to be incumbent on individual senators and representatives and state legislators all across the country to make these laws work for everyday people.

And folks are not going to be able to rely on a Supreme Court decision because of an activist Republican court that saw fit to overturn 50 years of precedence in order to take back a right. The Supreme Court has never taken back fundamental rights, reproductive rights.

Here we have rights being taken away from people after 50 years of precedent. What does that mean for the future, what does that mean for the future of rights that people enjoy right now? I'm very concerned.

LEMON: One would think that you might be able to win some of your Republican colleagues over, because if you actually look at how people feel about a woman's right to choose around the country, most people are somewhere in the middle. They're not with the extremes, and they're not with losing it all the way but they also want some restrictions on abortion. So perhaps, --

PETERS: Right.

LEMON: -- there is something there.

PETERS: Absolutely. And we've got to find that common ground. We've got to make sure that we're dealing with this issue in a thoughtful way and not letting the extremes rule the day.

LEMON: Senator Peters, thank you so much. And thank you for sharing your story with you and your family. I really appreciate it. And best of luck to you and your wife.

PETERS: Thank you. LEMON: Thank you.

President Joe Biden taking aim at what he calls the MAGA crowd, as the midterm election season kicks off. We are going to tell our what else he is saying, that's next.

(BEGIN VIDEO CLIP)

JOE BIDEN, PRESIDENT OF THE UNITED STATES: This MAGA crowd is really the most extreme political organization that's existed in American history, and recent American history.

(END VIDEO CLIP)

[22:20:00]

(COMMERCIAL BREAK)

LEMON: President Biden launching a new line of attack against Republicans as the midterm election season kicks off. He's calling the Trump wing of the GOP extreme.

Joining me now, CNN's chief correspondent Kaitlan Collins, and CNN political commentator Charlie Dent. Good evening to both of you.

Let's see. Kaitlan, President Biden launching a new attack line against the GOP, but not mentioning the former president by name. What's he saying?

KAITLAN COLLINS, CNN CHIEF WHITE HOUSE CORRESPONDENT: Yes, it seems deliberate that President Biden today did not say President Trump's name. He often refers to him as his predecessor, by he seems to go out of his way, Don, when he was speaking with reporters today not mentioning Trump's name.

The White House says that's because Trump is not going to be on the ballot come November. Of course, a lot of Republicans who saw themselves in Trump's way will be on the ballot. And that is who of course Biden is targeting, given the concerns about Republicans, the concerns that Democrats have about Republicans taking back the House, potentially regaining a majority in the Senate.

And so, President Biden is sharpening his criticism of them of their economic philosophy. And Don, this seems to be what you're about to hear, a preview of what president Biden's campaign speech could be.

(BEGIN VIDEO CLIP)

BIDEN: If they hadn't put this print, you would think I was making this up. Senator Rick Scott of Florida, the United States senator, who's leading the Republican national senatorial campaign committee, released what he calls the ultra MAGA agenda. It's a MAGA agenda, all right.

Let me tell you about this ultra MAGA agenda it's extreme, as most MAGA things are. It will actually raise taxes on 75 million American families, over 95 percent of whom make less than $100,000 a year.

(END VIDEO CLIP)

COLLINS: Now, of course, Don, he was talking about a proposal put forward by Senator Rick Scott. That's something that even Senate Majority -- or former Senate Majority Leader Mitch McConnell rejected in public, saying that they fear that that could essentially hurt Republicans who are going to be on the ballot this fall. But we should note, that you heard him say MAGA, again, again, again, in his speech today.

That seems to be what the White House is previewing what President Biden is going to be doing in the months leading up to the midterms.

LEMON: Let's talk about, Charlie, Senator Mitch McConnell rebuking Scott's plan. It's a plan that includes a bunch of Trumpian proposals, like completing a border wall and naming it after the former president. What do you think is behind Biden strategy? Divide the GOP?

[22:25:07]

CHARLIE DENT, CNN POLITICAL COMMENTATOR: No, Biden strategy is pretty simple, actually. He knows that midterm elections are almost always a referendum on the party in power, and the president in particular. And he's trying to turn this into a choice election.

And so, the Rick Scott proposal in particular is an easy target for him. And certainly, the impending Supreme Court decision could be a target. So, he's trying to turn this into a choice. It's the only option he has.

LEMON: Smart?

DENT: Yes. And of course, it's smart. It might not work, but it's smart. The only other thing I would add, you know, Mitch McConnell is a smart guy, I can't imagine that he was happy with Rick Scott's proposal, because McConnell knows the election shouldn't be -- they don't want to make it about the Republicans.

They don't want to give the Democrats anything to shoot at, and Senator Scott gave the Democrats a big target. But I don't think it's going to be successful, honestly, Don. But it's the only often the Democrats have.

LEMON: Kaitlan, the president also taking on the Supreme Court draft decision knocking down Roe versus Wade and what that may mean for other rights and laws across the country. Listen and then we'll discuss. Here he is.

(BEGIN VIDEO CLIP)

BIDEN: What happens if you have states changed the law, saying that children who are LGBTQ can't be in classrooms with other children? Is that legit? Under the way the decision is written? What are the next things that are going to be attacked? Because this MAGA crowd is really the most extreme political

organization that's existed in American history, and recent American history.

(END VIDEO CLIP)

LEMON: So, Kaitlan, is this -- it's pretty sharp language from the president. The sharpest language that we should expect from Biden as the midterm approaches, or do you think that this is a taste of what's to come that maybe he is going to ratchet it up a bit?

COLLINS: I think it's something you'll see the president continue to build on. Of course, the White House is kind of having to balance how they're talking about this draft opinion. Yes, they've commented on it, given the Supreme Court has confirmed it's authentic. But they're also trying to watch because the final opinion has not come out yet. That's now expected to come out for at least several more weeks later.

But you are seeing the president make the argument that basically, if this ruling stand as it was written in this draft that was published by Politico, that it is going to endanger other rights, other privacy and freedom rights that people have. So that is his argument that he's making about what this is going to look like.

Now, of course, we know for this one in particular, it remains to be seen what other laws states try to pass in light of this. We know several states have already said if this is going to be the final ruling from the Supreme Court, they will move to make abortion a legal in their state. We saw that in Alabama, where I was yesterday. We saw state lawmakers already talking about that.

The other thing the White House is balancing here is what they are going to do if that is the final ruling. And the president said he has tasked his team with coming up with options if this the ruling as it stands. The White House is not really detailing those in public, but said they would not be unveiled until that ruling is final from the Supreme Court.

LEMON: Charlie, the president is calling the Trump supporting wing of your party the most extreme political organization that is existed in recent American history. If for the entire campaign, and well into his entire presidency, he talked about working with Republicans is safe to say that that era, too much people's criticism as well, and members of his own party, is it safe to say that era is over?

DENT: Well, it sure sounds that way. Look, to be fair, yes, there are elements of the MAGA movement who are extreme. I don't know that we can make that one blanket statement about all of them. And there are many obviously Republicans in Congress, you know, who really aren't very closely tied to the MAGA movement take a lot of grief for it.

But there's no question that there are extreme elements within the party that are a liberal and, in some respects, anti-Democratic and very extreme. Look, if I were the Democrats, I would be trying to tar every Republican with Marjorie Taylor Greene and Madison Taylor Greene, and Matt Gaetz, just as Republicans trying to tag the Democrats with the squad with more extreme elements of their party.

That's just fair game. But that's what I think the Democrats are going to try and do. I don't know, again, I don't know that they'll be successful, but they really don't have any other good options right now.

LEMON: Yes, wow, yes. I was just thinking, you laid a whole lot down right there.

Kaitlan, did you want to jump in, let's take you want to say something. Do you want to say something about that?

COLLINS: Well, I just want to say of course, the other side of this, and what you heard from people like Democratic Senator Joe Manchin today saying today that he still thinks inflation is going to be the driving factor in the midterms. That's going to be one of their biggest problems to deal with.

And I asked Jen Psaki today at the briefing if that's something that the White House also sees if that's their view. Right now, of course, they know the polling that they've seen today including from CNN's latest polling, that the economy is one of the number one concerns for voters.

Of course, we'll see if that changes now that we've seen this draft opinion from the Supreme Court. There hasn't been polling conducted obviously in the few days since that happened. But I think that's going to be something that the White House is going to be watching.

[22:29:59]

That's why you are seeing the president today talking about paying down the national debt, because they know what a concern that is for voters.

LEMON: Yes. Look, I don't see a lot of Republicans celebrating what could possibly happen if this draft is indeed enacted and put into law. Yes, but -- Charlie?

DENT: Yes. I was going to say look, I was the last pro-choice Republican in the House, in the U.S. House. And I was the last one to vote against defunding Planned Parenthood. This is an issue where Republicans know they are in a defensive issue for a very simple reason that the public is not with them on this one. They know. That's why they're talking about the leak, and not the substance.

Because this a -- this is going to change abortion politics. Can you imagine the bills that would come in the House if Republicans had the House? You know, why not pass a bill to make abortion illegal in every state? I mean, I can see all kinds -- what are they going to do about abortions (Inaudible).

LEMON: Yes.

DENT: Burden (Ph) contraception and all of that. So, this is not an issue they really want to be talking about. They are always playing with blanks on this issue. And the Supreme Court was a backstop. Well now that backstop may have big holes in it, or may not be there at all on this issue.

LEMON: Thank you both. I appreciate it.

DENT: Thank you.

LEMON: More audio from House Republican leader Kevin McCarthy on tape talking about the former president right after the insurrection. We're going to play it for you right after this.

[22:35:00]

(COMMERCIAL BREAK)

LEMON: New tonight, to New York Times reporters obtaining more audio of House Leader Kevin McCarthy denouncing then President Trump after the January 6th capitol attack. I want you to listen to what McCarthy said on a house GOP call, only two days after the insurrection.

(BEGIN VOICE CLIP)

MCCARTHY: Yes, but what the president did is atrocious and totally wrong. From the standpoint, we're 12 days away. I mean, the one point I'd make with Biden. If you have an impeachment and you're stuck sitting in the Senate and he needs cabinet members. He's got secretary of defense; he's got a lot of things he's got to have moving. And if you think from a respective, you put everything else away, this country is very, very divided.

I do think the impeachment divides the nation further and continues the fight even further. That's why I want to reach out to Biden. I wanted the president to meet with Biden but that's not going to happen.

(END VOICE CLIP)

LEMON: So, I want to bring in Elie Honig, CNN legal analyst and a former federal and state prosecutor. So, Elie, good evening to you. Here we go again. So, he calls Trump's actions atrocious and totally wrong, and he is reaching out to Biden. He's clearly worried about what might happen next.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yes, Don, if I ever had the chance to question Kevin McCarthy, the very first question I would ask him is atrocious and totally wrong, those are your words, you said that. What specific actions did Donald Trump take that you believe back then, were atrocious and totally wrong?

This is why it's so important that Kevin McCarthy testifies, unfortunately, that's purely hypothetical at this point. He's not been subpoenaed by the January 6th committee. They have politely asked him for his testimony, he's politely declined. And unless and until they subpoena him, we likely won't hear from Kevin McCarthy.

And look, he has an obligation to testify at a minimum, as a witness. He is a well-placed person. He spoke with Donald Trump on the day of. And at the time he had a very clear vision of Donald Trump's conduct.

LEMON: OK. Another recording, Elie, this one we hear Kevin McCarthy talking with an aide who brings up invoking the 25th Amendment against Trump. Watch.

(BEGIN VIDEO CLIP)

UNKNOWN: I think the options that have been cited by the Democrats so far are the 25th Amendment, which is not exactly an elegant solution here.

MCCARTHY: That takes too long too. It could go back to the House, right?

UNKNOWN: Yes, correct. If the president were to submit a letter overruling the cabinet and the Vice President, two-thirds vote in the House and Senate to overrule the president. So, it's kind of an armful. Obviously, impeachment has been discussed. And then I mean, I think they want him to resign, which I don't see happening either.

(END VIDEO CLIP)

LEMON: All right, Elie, the 25th Amendment was under serious consideration. McCarthy's only concern was that it would take too long.

HONIG: Yes. What's so interesting here, the 25th Amendment of course, provides for temporary removal of power from a president who is mentally or physically incapacitated. Now we know Donald Trump was not physically incapacitated.

What's Kevin McCarthy's reaction when this aid floats the 25th Amendment? Not what are you talking about, this president is not mentally or physically incapacitated. It's simply it will take too long. Again, I think that's really telling as to how clearly Kevin McCarthy saw things in the days after January 6th. He has very much changed his tune since then, but he needs to be questioned and he needs to give answers about why he thought what he thought at the time.

LEMON: Well, I mean, you said, listen, after January 6th, but I mean, Trump, Elie, had only 12 more days in office. And their concern was what Trump might do if he stayed in power, even for that short amount of time.

HONIG: Yes, I think it's so telling that they were seriously talking about the 25th Amendment, even for just about two weeks. I mean, it's an extraordinarily extreme remedy, it's never been used in the history of this country. And it tells you, you know, let's bring ourselves back to those days after January 6th. There were legitimate questions about is this president in the right state of mind to continue holding the office?

LEMON: What does all of this mean for the January 6 investigation?

[22:40:01] HONIG: Well, one of the big questions for the January 6 committee is will they ever subpoena their fellow members of Congress, Kevin McCarthy, Scott Perry, down the line, and the answer seems to be no. But their job, and they've done a good job in fairness of this so far, is to take us inside the key rooms inside the portals of power, inside the White House and Congress and tell us, what were people doing and saying back then.

It's so important that we focus on the reaction back then. Because by now, there's have been times to sort of circle the wagons, get the political talking points, get the spin out, that's fine. But the truth is what happened back then. The truth is in these recording we're hearings, the truth is in these texts that we're hearing, and the committee needs to really bring those out.

LEMON: Elie Honig, thank you, sir.

HONIG: Thanks, Don. All right.

LEMON: Is this Mariupol's last stand? We have all the latest developments in Ukraine next.

[22:45:00]

(COMMERCIAL BREAK)

LEMON: Ukrainian forces continuing their push against Russians around the city of Kharkiv. That as Pentagon spokesman John Kirby says that Russia is trying to target key infrastructure in the west of the country in an effort to show the flow of weapons coming from the U.S. and its allies.

And in the port city of Mariupol, the bloody battle taking a new turn as Ukrainian commander says that some Russian forces have made it into the steel plant.

So, joining me now is CNN military analyst and retired lieutenant general, Mark Hertling. General, good evening. Thank you so much.

MARK HERTLING, CNN MILITARY ANALYST: Good to be with you, don.

LEMON: Listen, he's -- actually Kirby saying a lot of what we talked about on the show and we've been talking for a couple weeks or months now, that the west would be targeted. But I just want to -- I want to start with the fighting in Mariupol, if you will, where Ukrainian commanders say that the Russians breached the perimeter but had been fought off.

The U.S. is estimating that there are roughly 2,000 Russian soldiers still in Mariupol. How significant would it be if they do finally capture the whole city?

HERTLING: Well, it certainly going to give them the lines of communication and the lines of supply they need from east and west and to the north. But truthfully, Don, I think it's going to continue to be just a savage, barbaric and bestiality fight in that steel plant. And the reason why is because we've trained on, the U.S. army, has trained ongoing into caves where there is multiple layers, trying to get people out. We did that because of terrorist activity in Afghanistan.

It is extremely difficult to clear the area the size of the steel plant, with the number of corridors, the six floors that go underneath the ground and the miles of opportunity for the fighters inside of the plant to continue to counter anybody that comes down a hallway, comes down a stairwell.

So, it's going to be -- and they can't bring tanks down into those places. And they can't get artillery rounds beyond the first or second level. So, it's going to be a lot more fighting. And I think it's going to go on for days. And the Russian forces are going to be held up there for much, much longer than they anticipate.

Putin said, hey, let's surround the place and leave it at that. The general should have gone by that or the orders changed. But it's a bad move to try and go inside and hunt these fighters that are still in there or out of there.

LEMON: It's amazing, General, to, I mean, as I'm looking at the video that we have, and all the video that we had on -- people who have been calling us -- calling in with video on camera from underground bunkers, just the technology with his war, how much of it we are seeing, it is unprecedented. You know? It's amazing to watch all of these images that come through.

HERTLING: Yes, and this only shows a small fraction of what occurs on the battlefield, Don. I mean, we see that, like you're showing right now, overhead pictures of tanks moving.

LEMON: Right.

HERTLING: That is a soda straw, we call that a soda straw in the military because you are only seeing one thing. You can't see the big picture from these kinds of drones. You can't see maneuver units going to different places. You can't see artillery landing. You can't see our intelligence affects what is happening on the battlefield. You can see the movement of a small tactical element. And that really doesn't give a good picture of the kind of intense fighting that's going on.

LEMON: General, Ukrainians are making progress near Kharkiv, taking back another town east of the city. And they are close to the border with Russia. Does this give them a chance to attack more Russians supply lines?

HERTLING: Yes, you are seeing those actions near Kharkiv being very progressive for the Ukrainian force. They are counterattacking. They -- there are different estimates of how many kilometers and how many miles they've taken to the east of that city. But it's obvious that it is disrupting the Russian attacks in the Donbas. They are trying to get around that force to surround them. They can't do it from the north or south out of Mariupol. So, they are having real big problems. You know, going back to the observe -- the overhead observation, you

see some of the Russian attacks by artillery, it is just not good, Don. I can tell from a commander's perspective that the artillery is not hitting what they are aiming at. It's very faulty. The maneuver forces are disjointed from the Russian side. And Ukrainians are taking advantage of that. And they are doing some very good counterattacks in that area. And plus, they know the ground.

LEMON: If you can give me a very short answer, yes or no, because I promise in the beginning, is it -- is it any surprise that they are targeting the west because that's where the weapons are coming in and the supplies?

HERTLING: No, not at all. But they are not going to hit it because they are targeting stationary points. And that resupply are coming in on different routes, different railroads, it is not going to have an effect. They may get lucky, they may hit a convoy, they may hit a train or they may just disrupt the schedule for a while. But it's not going to affect the flow of logistics, I don't think on any large scale.

[22:50:00]

LEMON: General, thank you so much. I appreciate it.

HERTLING: Pleasure, Don, thanks.

LEMON: Another major member of the Biden administration has COVID. We're going to tell you who, that's next.

(COMMERCIAL BREAK)

LEMON: So, new tonight, the Secretary of State, Antony Blinken has tested positive for COVID-19. The State Department is saying that Secretary Blinken is fully vaccinated and boosted against the virus, and is experiencing only mild symptoms.

The White House says that President Joe Biden is not considered a close contact of Blinken. Both Blinken and Biden attended the White House correspondents dinner this past weekend in Washington.

CNN learned last night that ABC News chief Washington correspondent, Jonathan Karl, there he is with a quick talk and handshake with the president, Jonathan Karl tested positive for COVID-19 after attending the dinner.

[22:55:06]

Karl shook hands with President Biden at the event, also sat next to Kim Kardashian. CNN also reporting that reporters and staff from CNN, ABC News, NBC News, CBS News, Politico and other participating news organizations have tested positive for the virus. We'll be right back up.

(COMMERCIAL BREAK)

LEMON: This is DON LEMON TONIGHT.

Shock and outrage. American women may soon have the decades' old right of abortion stripped away by the Supreme Court. Can Congress do anything? A key House Democrat joins me with her personal story in just a moment.

Pushing Russia back, Ukrainian forces inching towards the Russian border as they push back Russian forces to the east of Kharkiv.

[23:00:04]

And manhunt for a missing Alabama corrections officer and the dangerous inmate she is accused of springing from jail.