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Biden Administration Considering Negative COVID-19 Test for Domestic Travel; Delta Airlines to Block Middle Seats of its Flights Through April; Historic Second Impeachment Trial Against Trump Begins; Historic Second Impeachment Trial Against Trump Begins Today. Aired 9- 9:30a ET

Aired February 09, 2021 - 09:00   ET

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

[09:00:07]

JIM SCIUTTO, CNN ANCHOR: Very good Tuesday morning to you. Quite a big day. I'm Jim Sciutto.

POPPY HARLOW, CNN ANCHOR: And I'm Poppy Harlow.

For the second time in just over a year, the Senate will transform into a proverbial courtroom today for the impeachment trial of former President Trump. This time the chamber will determine if the former president is culpable for inciting the insurrection on the Capitol on January 6th. An attack that put the very lives of those same lawmakers, the senators who will now be jurors, in imminent danger.

SCIUTTO: Democrats are preparing to use the president's own words from that very day.

(BEGIN VIDEO CLIP)

DONALD TRUMP, FORMER U.S. PRESIDENT: And we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore.

(END VIDEO CLIP)

SCIUTTO: Well, they haven't heard the evidence or the arguments yet, but most Republican senators are already saying they will vote to acquit. So House impeachment managers face an uphill battle to win the necessary two-thirds majority to convict.

Trump's defense is set to argue that the whole trial is unconstitutional. They call it politically motivated and as well as infringement on the former president's free speech rights.

All of this taking place under what is extraordinary security at the U.S. Capitol. Physical reminder that federal officials still believe the threat is very real.

Let's begin on Capitol Hill. Lauren Fox is there.

Lauren, so walk us through the first day of the trial. LAUREN FOX, CNN CONGRESSIONAL CORRESPONDENT: Well, this question of

whether or not it is even constitutional to be holding an impeachment trial of a former president, that is going to be the agenda today. Four hours of debate followed by a vote this evening on that question of constitutionality.

Now this is going to look very similar to what we saw a couple of weeks ago when Rand Paul forced senators to answer this question in a vote. Back then we saw five Republican senators siding with Democrats. 45 Republicans saying that this was not constitutional. We expect a similar breakdown today.

Now starting tomorrow, the real arguments of this case will begin. First the House impeachment managers will have two days, 16 hours to make their case. Followed by the president's defense team, former president's defense team, making their case for 16 hours over two days.

We still don't know which weekend days or both weekend days will be used as part of this impeachment trial. That's still being worked out. If you remember, one of the president's defense lawyers requested that they have the Sabbath to observe so that meant that lawmakers were going to have a break on Saturday. Since the defense team has said they do not need that day, so the question just becomes whether or not senators drive to the end of this or not.

Then there are four hours of questions for senators. A question of whether or not they are going to have witnesses. And then that final vote on whether or not to convict the former president on this charge of inciting an insurrection -- Jim.

HARLOW: Lauren, the -- what Jim said at the top about Senate Republicans that most have said they're -- I mean, going to vote to acquit, it's odd to have any juror saying any way that they will go before the trial even starts.

FOX: Well, and traditionally, Poppy, the argument has always been up here, I'm a juror. I'm not going to comment which way I'm going to fall on this.

HARLOW: Right.

FOX: But I think some Republican senators are giving us a sense that because they don't believe that this is constitutional, they therefore would not vote to convict.

I want to read this very revealing quote from Senator James Lankford. He says, quote, "I don't know of anyone that their mind is not made up ahead of the impeachment trial. The first question on the issue of constitutionality, that drives a lot of it. And everything else. I think people are pretty locked down."

And like I mentioned, 45 Republicans do not believe this is constitutional. At least they voted that way. Five Republican senators said they did believe this was a constitutional process. So if you were looking for senators that might be willing to convict, you probably want to look at those five who believe this is a constitutional process -- Poppy.

HARLOW: Right. OK, Lauren, thank you for explaining it all to us.

Let's get a little bit more on the key players in the impeachment trial. Our senior political analyst John Avlon is here.

Good morning, John. It's great to have you. I know you'll be around with us next hour as well. Can you walk through our -- for our viewers who we're going to hear from today on the president's side?

JOHN AVLON, CNN SENIOR POLITICAL ANALYST: Absolutely. As you know, the president had a hard time locking down lawyers, cycling through several before settling on these two. First up is David Schoen. He's a respected trial lawyer from Alabama but has a history of taking on controversial cases. President Trump first came into contact with him when Schoen served on Roger Stone's appeal team.

But in addition, he's taken on unpopular clients in the past like Ku Klux Klan and mob bosses. He was also asked by Jeffrey Epstein to take over his defense before Epstein's suicide. Also a former law professor at Seton Hall and frequent guest in conservative media.

SCIUTTO: John, tell us about the House impeachment managers. Stacked with some former lawyers there, right? Joe Neguse, Jamie Raskin and others. They're trying to put some prosecutors in the room.

[09:05:08]

AVLON: They certainly are. And Jamie Raskin is taking the lead for the team along with nine of his colleagues. A lot of rising stars in the party on that team. Many with prosecutorial backgrounds, as you said. But Raskin will be taking the position of lead manager. He is a constitutional scholar, a former professor at American University, the author two of books on Supreme Court cases.

And so Raskin really will be in some ways the tip of the spear for this team. He served three terms in the state Senate. He's well-liked among colleagues and really known for his respect and reverence really for the law, for the Constitution, for the Supreme Court. He is also rebounding from what can only be described as unimaginable personal tragedy after the loss of his son to depression on the last day of 2020.

He had just buried him when the attack on the Capitol happened, and then Nancy Pelosi asked him to take this position and he agreed out of passion for the Constitution and his belief that this was a time to stand up.

HARLOW: Yes.

AVLON: So a lot of drama. A lot of experience being brought to bear.

HARLOW: Yes. Reading his post about his son that he wrote with his wife is just heartbreaking.

John, before you go, I want to play some sound from Bruce Castor. He is the other attorney representing the president. So let's play that and then tell us about him on the other side. This was him with their sort of counterpunch just a few days ago.

(BEGIN VIDEO CLIP)

BRUCE CASTOR, TRUMP IMPEACHMENT LAWYER: There's an awful lot of tape of cities burning and courthouses being attacked and federal agents being assaulted by rioters in the street cheered on by Democrats.

(END VIDEO CLIP)

HARLOW: So tell us about him.

AVLON: So Bruce Castor is a former elected district attorney from Montgomery County, Pennsylvania, outside Philadelphia. He is best known for declining to prosecute Bill Cosby in 2005. He was defeated in an election for that position by someone who said Cosby could, in fact, be prosecuted and indeed he was successfully prosecuted. He also served as solicitor general and acting attorney general for Pennsylvania. So Castor will be the second person on Trump's defense team.

What you just heard there, though, I think is a sign of coming attractions. We know they're going to argue process. They're going to say that this is unconstitutional. An infringement on the First Amendment. But you can expect some indulgement in what is sometimes called whataboutism, deflection and projection on Democrats saying that they have been uncivil and incited insurrection in the past.

That has little to nothing to do with the constitutional case at hand, but that is going to be one of the arguments we should look for in the coming hours and days.

SCIUTTO: Yes. It's been a popular one, whataboutism in the current discourse.

John Avlon, thanks very much.

AVLON: Thanks, guys.

SCIUTTO: Joining us now is Robert Ray. He's a member of Donald Trump's defense team in the first impeachment, and Anne Milgram, professor at NYU Law School and CNN legal analyst.

Thanks to both of you.

Robert, if I could begin with you on this first question of constitutionality of the trial, while noting the president was impeached while he was still president but will be tried after he left office, if that argument is correct, widely disputed even by some conservative attorneys, if that's correct, what is the constitutional sanction for presidents who commit high crimes and misdemeanors in the last several days or weeks of being in office?

ROBERT RAY, FORMER FEDERAL PROSECUTOR: They can be prosecuted once they leave office under the criminal law as the constitutional design permits. Look, the issue here, and, you know, I would say in fairness, that this is probably an unresolvable question that it's never happened before. We don't know. There's not enough specifics in the Constitution, I think, to resolve the question one way or another.

What we do know, though, is that the only purpose to this impeachment since removal is no longer at issue is the question about whether or not Congress has the power to disqualify former President Trump from holding federal office in the future and, obviously, that's specifically designed to render him incapable of running in 2024.

And it seems to me as a constitutional, structural judgment, that's something that should be reserved to the people. 75 million people voted for this candidate and it seems to me it's up to them in four years to decide whether or not he's a candidate and whether or not he's elected to office in the future. I don't think that's a judgment that should be made by 50 plus 17 Republican senators.

HARLOW: Anne Milgram, you have a really interesting new CNN.com piece about the president's sort of three-pronged defense here, but what struck me the most is, you know, what you wrote about intent when it comes to the 1969 precedent at the Supreme Court set by "Brandenburg vs. Ohio."

Isn't there a level of intent that needs to be proved here or does that bar not matter because it's not an actual criminal court?

[09:10:00]

ANNE MILGRAM, CNN LEGAL ANALYST: It's definitely not an actual criminal court, and so you're right to start there, but intent does matter. And remember that the House managers have charged former President Trump with inciting an insurrection. And so one of the things they're going to have to show is that he did in fact incite that insurrection. There -- under "Brandenburg," there are three questions. Did the president intend it? Was it imminent that it was going to happen and that there was going to be unlawful conduct?

Here it's pretty straightforward in my view. There's going to be considerable evidence that it was imminent, the president was speaking almost at the same time as people were -- the rioters were breaching the Capitol, engaging in unlawful behavior, and so it's very foreseeable that that would happen.

The question then becomes, what did the president intend? And that's how we start to look at his words when he said we're going to go to the Capitol. We're going to fight like hell. And I think that that's going to be the main focus of the arguments that we see on both sides. The prosecution putting in evidence of that and the defense saying, actually, he meant to be talking about election security and not about insurrection and violence.

SCIUTTO: Well, to that point, though, let's be clear, and Robert, I wonder if you could answer this. I mean, the defense will attempt to say he just said fight, fight, fight, a few times in many hundreds of words on January 6th. But how does the defense separate those words on the day, which are alarming enough to some, to his repeated claims for weeks, right, that the election was stolen, to his repeated efforts, right, and actions to overturn the election, including on that day, encouraging his supporters to go pressure in effect sitting members of Congress right up to the vice president to refuse to certify electoral votes? I mean, the point is, how do you separate the words on the day from weeks of words, right, but also actions?

RAY: I think -- well, I think the answer is, you're right that context is still relevant. This is in a sense a prosecution of an action, even though it's not technically a criminal case. Obviously, the House managers have assistance from former prosecutors for precisely that reason. But his -- you know, ultimately his conduct is judged based upon his speech, and the House managers will be held to their impeachment article which charges that the "fight like hell" speech is sufficient to constitute insurrection warranting removal from office and-or a bar from holding future federal office.

And, you know, look, I think the ACLU, apparently, I don't know, I have been told by Professor Dershowitz that the ACLU has concluded that the president's speech in this regard is covered by Brandenburg, and Brandenburg requires that there be a direct call for violent action. I don't think whatever the evidence is here and whatever is presented by the House managers that they'll ever be able to prove that, or that the president's intent was to cause that to occur.

And if they can't prove that, it seems to me it fails. And there's a reason why there have been precious few attempts to prosecute this kind of speech since the Supreme Court decided Brandenburg in 1969, over 50 years ago. If you take a look at the Brandenburg decision, does this sound familiar? It involved the prosecution of somebody from the Ku Klux Klan in Ohio.

And his words were, if our Congress continues to suppress the white Caucasian race, it's possible that there might have to be some revengeance taken. We are marching on Congress, July the 4th. That sounds eerily familiar to the sort of speech that we're talking about here and that's why I think the ACLU and many others have said that this would never constitute a successful prosecution under the federal criminal law.

HARLOW: It's going to be fascinating to watch for all of those reasons. We'll have you back soon, Robert Ray, Anne Milgram, thank you very much.

Still to come, a Republican member of Congress with a very clear message for his Republican Senate colleagues. Convicting former President Trump is, quote, "necessary to save America"? Congressman Adam Kinzinger is here with us this hour.

Also, will all domestic travelers need a negative COVID test to fly? The White House is considering that. This as Delta becomes the only U.S. airline to continue blocking middle seats. Delta's CEO Ed Bastian joins us exclusively ahead.

SCIUTTO: And a hacker gained access to a water treatment facility in Florida and attempted to poison -- poison the town's water supply putting thousands of lives at risk. How officials stopped it finally and could something like this happen again? That's just ahead.

(COMMERCIAL BREAK)

[09:15:00]

POPPY HARLOW, CO-ANCHOR, NEWSROOM: So the White House is now considering a rule that would require all domestic flyers to test negative for COVID before boarding a plane. Here's Transportation Secretary Pete Buttigieg last night to Erin Burnett on where that stands.

(BEGIN VIDEO CLIP)

PETE BUTTIGIEG, SECRETARY OF TRANSPORTATION: The CDC is looking at all its options, but you know, there's got to be common sense, medicine and science really driving this.

(END VIDEO CLIP)

HARLOW: So what would that mean for an already struggling airline industry? This as Delta makes a significant move, extending the airline's middle seat blocked, making it the only U.S. carrier to keep that safety measure in place. Delta's CEO Ed Bastian joins us exclusively this morning. Ed, it's really good to have you. Thanks for coming on.

ED BASTIAN, CHIEF EXECUTIVE OFFICER, DELTA AIRLINES: Always good to be with you, Poppy.

HARLOW: So let's start there on the consideration right now by the Biden administration to possibly mandate a negative COVID test for any domestic flyer. Is that a good idea?

[09:20:00]

BASTIAN: I think it would be a horrible idea for a lot of reasons. First and foremost, we're carrying as a U.S. industry over a million people a day on average. And that number is starting to grow again, which we like to see. Travel domestically in the air transportation system is the safest form of transportation. I think we all know that. Incidents of spread aboard any of our planes is absolutely minimal, in fact, very few documented cases globally, not just domestically.

And it would also take probably about 10 percent of the testing resources that this country needs to do to test sick people away from those people. It's hard to get tests. There's days of delay still. I think there would be a logistical nightmare and would set to -- not just the transportation and travel industry back, but the whole hospitality sector, the hotels, it set us back at least probably another year in the recovery.

HARLOW: So, I mean, you have led Delta through this whole pandemic really from a health and safety over profit first. That's been clear in the decisions you've made. Are you saying it's Delta's assessment that negative COVID tests being mandated will not keep domestic flyers safer? BASTIAN: It will not keep domestic flyers safe. If anything, it's

going to keep people away from what they need to do which is in terms of, you know, starting to get back out, you know, for not just essential travel but people need to start reclaiming their lives, and taking testing resources away from those truly in need, I think would be a terrible decision.

HARLOW: Let's talk about the decision you made yesterday that makes Delta the only U.S. carrier to continue to block middle seats. That takes up about 30 percent of the revenue that you could be getting. I wonder why you made that decision, and if it will extend even beyond the end of April.

BASTIAN: Well, protecting the health and the safety of our employees and our customers has been our principal objective throughout the pandemic. We -- our team is doing a great job with all of our safety protocols, as I just mentioned and we're keeping our people and our customers really safe. While customer satisfaction on Delta has always been strong, we've seen over the last year, it's even stronger, and we know the middle seat is one of the things that people really value when they make the decision in the face of a pandemic to travel on Delta.

We'll be looking out. We look over the next 90 days while we see demand starting to improve a bit. We still know there's a lot of work to do to continue to restore customers' confidence in air travel, and when demand starts to return for those seats, when people are saying, we need those seats to be sold in the marketplace, that will dictate that decision, but not before that.

HARLOW: How much is it costing the airline to keep doing this? I mean, every other competitor made the opposite decision.

BASTIAN: Well, it's expensive. There's no question about it. But interestingly, in the most recent year we finished, in fact, the most recent fourth quarter, we reported a couple of weeks ago, Delta actually had more revenue on average than any of our competitor average in the industry despite the fact we had 20 percent fewer seats available for sale. So people are prioritizing, as they should, their health and safety and comfort as they travel. And we're getting a meaningful premium for travel on Delta.

HARLOW: Let's talk about vaccinations. You guys have just started this week literally taking part of terminal C at your Atlanta hub and vaccinating your employees. I wonder how that's going, and are the majority of your employees actually taking the vaccine or are you seeing hesitancy?

BASTIAN: Well, we started yesterday, so it's --

HARLOW: Yes --

BASTIAN: All too early to give you any signs of where it's going, but we're thrilled to take part of concourse C over and turn it into a vaccination center. We've got great support from the city and our friends over at Hartsfield-Jackson Airport. We start -- we're starting with the 65 and above population within Delta. But also other airport community workers. Other airline workers that are over 65 that are based here in Georgia and they can qualify. We're offering the vaccines to them as well. We're going to be later in this week opening up our flight museum here on the campus of Delta for those same population for people to get vaccinated and we're working closely with the Georgia Department of Health because I think corporate America really needs to lean in for these next several months to try to get those -- the distribution, the vaccinations at a much higher clip.

HARLOW: So, to your point, I know you know that the United Airlines' CEO Scott Kirby wants to mandate vaccinations for all of his airline's employees, but he says he can't do it without all of his competitors on board. Are you considering mandating? Do you think he's right? Are you considering mandating vaccines for your frontline Delta employees that interact with other people?

[09:25:00]

BASTIAN: I think it's far too early to make decisions about mandating. First of all, most of our employees can't even get the vaccines. We don't have the supplies yet.

HARLOW: Yes --

BASTIAN: But we're going to strongly encourage vaccinations. I know our people understand how important it is to restore confidence back in travel and getting vaccinated is one of those steps that we'll take. I think that's a decision for later on as we go through the course of the --

HARLOW: OK --

BASTIAN: Vaccination efforts.

HARLOW: Fair enough. Final question, we just saw in the last week, American Airlines and United together are going to have to send out these letters warning about 30,000 of their employees combined that they may be out of a job, furloughed come April 1st. Even without any potential sort of third round of government aid, is Delta facing something similar or can you guarantee at this point you don't need to do any more furloughs or layoffs?

BASTIAN: We are not doing any more furloughs -- we haven't done any furloughs throughout the entire pandemic, Poppy. Our team --

HARLOW: I know --

BASTIAN: Has done a great job of saving jobs by volunteering for time off and we've had a large retirement offer that we made last year, we got about 20 percent of our people did decide to retire. So our team is doing a great job, and though, we are not in danger of any furloughs at Delta.

HARLOW: That is, I think really good news for the thousands of folks that work for you. And thanks to all of them every day for what they do. Ed Bastian, thanks for coming on. BASTIAN: I do. Thank you.

HARLOW: You got it. Jim?

JIM SCIUTTO, CO-ANCHOR, NEWSROOM: Well, Republican Congressman Adam Kinzinger, he voted to impeach former President Trump. And now he's calling on his Senate colleagues to hold Trump accountable to vote to convict. Why he says the future of the party and the country are at stake.

HARLOW: Yes, it's going to be a great interview. That's next. We're also moments away from the opening bell on Wall Street. Futures slightly lower this morning after all three major U.S. indices did hit record highs yesterday. Investors are watching for any movement on President Biden's stimulus bill as former President Trump's second impeachment trial begins today. We're keeping an eye on all of it.

(COMMERCIAL BREAK)