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Critical Day in Trump Effort to Keep January 6 Insurrection Docs Secret; Biden Administration Announces Vaccine Mandate will Take Effect January 4; Rep. Nancy Pelosi (D-CA) to Speak this Morning Amid Push for votes on Both Bills. Aired 10-10:30a ET

Aired November 04, 2021 - 10:00   ET

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

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JIM SCIUTTO, CNN NEWSROOM: A very good Thursday morning to you. I'm Jim Sciutto.

ERICA HILL, CNN NEWSROOM: And I'm Erica Hill.

An hour from now, a crucial hearing in former President Donald Trump's fight to keep secret hundreds of White House documented related to January 6th.

Now, his legal team is claiming executive privilege, arguing Congress does not have the power to investigate him as a former president.

SCIUTTO: the House select committee investigating the insurrection wants to see more than 700 pages of handwritten notes, draft documents, daily logs from Trump's top advisers all related to January 6th. Trump has until next Friday to obtain a court order blocking that request.

Let's begin with CNN Senior Justice Correspondent Evan Perez. All right, so, Evan, the judge hearing this case has strongly criticized the January 6th insurrection, handed out prison time to some convicted rioters. Does that give us a sense of where the judge will stand on the president's claims?

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Yes. Look, I think it does give us a sense of how she views the January 6th attack, the extraordinary nature of it, and it will, I think, play into her decision-making. But, look, whatever she decides and whatever the courts decide is going to have tremendous consequences not only for the former president and the current president but future presidents.

And, you know, the former president is making a very interesting argument here. And I'll read you just a part of what his legal briefs say. It says the members of this committee have already concluded that the former president is responsible no matter what the evidence says. They can legislate accordingly or they must explain why each item requested would be material to any decision they intend to make. Over 1,500, 1,600 documents are at issue here. They're arguing over 700, more than 700 of these documents, and they include call logs, notes from close advisers, including the former chief of staff, Mark Meadows, lawyers inside the White House who took notes and wrote memos in those key days as the president -- the former president was trying to overturn the November elections.

And what Trump is arguing is that these are the types of things from his close advisers that the executive privilege is intended to protect. Of course, we only have one president at time, and President Biden has already decided that because of the extraordinary nature of what happened on January 6th, he is waiving that privilege. We'll see where the judges land on this, Erica and Jim.

HILL: Yes, we're watching for that. Evan Perez, I appreciate it. Thank you.

Joining us now to discuss, former federal prosecutor and Robert Mueller's former special assistant at the Justice Department, Michael Zeldin. Michael, good to see you, as always.

Picking up where Evan left off there, we have heard from this judge in very strong language when it comes to January 6th. That is expected to play in, Evan said, to decision-making here. But how much, though? How much -- based on what we know about this judge, what do you expect her to say specifically in terms of these claims that the former president's attorneys have made?

MICHAEL ZELDIN, FORMER FEDERAL PROSECUTOR: Well, I think she'll agree with the White House counsel who said that executive privilege should not shield the Congress' right to know about this extraordinary event on January 6th. So, I think, philosophically, she agrees with the White House Counsel's Office that these are extraordinary events that require a remedy.

Now, the remedy that the president seeks is a preliminary injunction, and that's a very high burden for him to overcome, I think.

SCIUTTO: So, you saw the lawyers' statement there, that is the former president's lawyers saying, in effect, you have to prove that each of these requests, demands is material to the investigation. So, it's a small picture here. I mean, to a layman, they seem material, right, because it gets to what the president's actions were, communications that day and leading up to it. From a legal perspective, are they material?

ZELDIN: Well, there are two things here, Jim. First is, of course, that under the Presidential Records Act, the sitting president gets to determine what is executive privilege.

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The former president has a right to be heard, but the authority rests with the existing president, and the existing privilege have said executive privilege does not apply in this case. So, that should be outcome determinative of the case. The additional thing is that this is a preliminary injunction. The burden is on Trump to prove that he's likely to succeed on the merits, that it's in the public interest to refuse to give these documents to Congress. I don't think he can meet the burden of a preliminary injunction. So, his argument that these are executive privilege documents that should be denied Congress I think fail on multiple fronts.

HILL: There's not only a lot of attention being paid to this, there's lot riding on this decision and what could happen next. This judge has moved fairly quickly, especially based on what we've seen during the Trump administration when this tactic of delaying really worked well for the former president.

We're told we could get a ruling fairly quickly. That being said, there could be an appeal. So, is this delay tactic essentially still working for the former president?

ZELDIN: Well, we'll see. The documents that are at issue are to be released to Congress by the National Archives on November 12th. So, the judge has that deadline to deal with, and she should rule before the November 12th release date one way or the other. If she says that Trump has failed to meet his burden of proving that a preliminary injunction is warranted in this case, then Trump, of course, has the right to appeal. But the appellate court can say, we're not going to deny Congress' access while you appeal this or they can, you know, continue the litigation and delay the release of the information.

I just can't imagine that under the constitutional structure that we have where Congress and the sitting executive agree that there's no separation of powers, that the White House says executive privilege doesn't apply, that these documents don't get released sooner than later.

SCIUTTO: Big picture, it just strikes me that all these arguments, all these delays we've been dealing with here in about for years in multiple investigations, and it doesn't seem that, well, at least with the former president, there are any legal consequences. I just wonder, in your experience, going back to Watergate, have we found that the system can't really respond to or police this kind of insider threat?

ZELDIN: Well, it does, I think, Jim, respond to this type of insider threat. It just does so very slowly. And so our desire to have an immediate resolution so that Congress can proceed with the hearing before 2020 and a possible change of power in the House of Representatives is what's so frustrating. You just want this to be decided, heard and we can move on as a country. But because the courts move is slowly, you get that sense that you just articulated, which is that the system doesn't work well enough under these circumstances, and maybe it doesn't.

HILL: Michael Zeldin, I always appreciate your insight. Thank you.

ZELDIN: Thank you, guys.

SCIUTTO: Well, several Republicans who went to see former President Donald Trump speak at the Stop the Steal rally on January 6th have just been elected to local offices.

HILL: CNN Politics Reporter and Editor-at-Large Chris Cillizza joining us now with more. So, Chris, what more do we know about these candidates?

CHRIS CILLIZZA, CNN POLITICS REPORTER: Okay, Erica, let me start at the top and say there's a difference between attending the January 6th Stop the steal Rally and invading the Capitol. None of these people I'm going to run through are accused of invading the Capitol. They were all at the rally, however, the Stop the Steal rally.

Okay. Virginia, obviously we know about Glenn Youngkin and we know what a big deal that was nationally, but down ballot, we had some interesting things happened. So, the first two, Dave Larco and John McGuire, both incumbents who were re-elected, both attended January 6th. I want to get to them, but I want to start with Marie March. Great hat, by the way.

Marie March won an open seat in the House of Delegates. She is an owner of barbecue restaurant down in the area that she represents now, and she talked about her candidacy. Let's play that and let's come back.

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UNIDENTIFIED FEMALE: They canceled my trip to see my president and they called me names I'm sure not to forget. It's got me to thinking of possibly running and using my voice for political pushing and shoving.

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CILLIZZA: I don't remember that being in a Dr. Seuss rhyme. Regardless, Marie March going to represent in the stateHouse for Virginia.

All right, now, let's go to Dave Larock. Now, this guy has been in office since 2014. I want to -- yes, next screen, thank you. This is Dave Larock talking about January 6th, it is highly likely that the reports of people who had the audacity forcefully enter the Capitol building were paid provocateurs sent in to taint an otherwise orderly protest.

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That isn't true, right? This is a very common talking point among who attended the rally. Ron Johnson has said this from Wisconsin that somehow this was paid provocateurs, antifa. We know that's not the case. We know that these people were supporters largely of Donald Trump.

Now, the other guy, let's get to him, Mr. McGuire, I think we have something from him. Right. Here is John McGuire, again, an incumbent re-elected to the stateHouse in Virginia. Here's him with -- by the way, John McGuire is not that short. Glenn Youngkin is 6'7". Just an FYI, he's huge. Congratulations to my good friend and Virginia's next governor, Glenn Youngkin, incredible win. John McGuire said he left the January 6th rally before anything else happened. He was unaware that people had gone into the Capitol until he got home.

Now, there is a picture that was circulated by his Democratic opponent of him in which he is seen next to people in paramilitary gear near the Capitol, but, again, no proof that he entered the Capitol. He himself said, I didn't even know it was happening.

Now, so, that's Virginia, but there are a lot of other elections. Let's go to the next screen here because there were a bunch of other people elected, and I want to highlight a few. Natalie Jangula elected in this -- it's actually Nampa, Idaho, not Ohio. Charles Ausberger in Connecticut, my home state. Just to note, he was elected to a school board. There were eight openings for -- nine openings for eight seats. So, he came in -- he beat one person out.

This is the one that's interesting, Matthew Lynch in Braintree, Massachusetts, former teacher resigned in February when it became clear that he was going to be -- that he was at the rally, pictures of him emerged. He resigns, and he has told people that the FBI has contacted him not once but twice over what happened on January 6th and where he was.

Now, again, he has not said he was in the Capitol, we don't know that he was, but he himself has said the FBI's contacted him twice. So, this is not new. There's going to be more of this. There's going to be more of these people elected. Because, remember, for many people in the Republican Party, January 6th was not a bad day, it was a good day, unfortunately, for democracy. Back to you guys.

SCIUTTO: I mean, raises the question are they running on that, right? Chris Cillizza, thanks very much.

A reminder, join Jake Tapper for a new CNN special report tomorrow night, Trumping Democracy, An American Coup, begins at 9:00 Eastern Time.

HILL: New this morning, some health care workers, federal contractors and businesses with more than 100 employees now have until January 4th to be fully vaccinated. Now, this comes after the Biden administration moved its vaccine mandate start date.

SCIUTTO: CNN White House Correspondent John Harwood joins us with more. And, John, I wonder was this move because of concerns about staffing shortages, particularly before Christmas?

JOHN HARWOOD, CNN WHITE HOUSE CORRESPONDENT: Well, businesses made that argument. The supply chain problems that the economy has been experiencing would be exacerbated by this. The White House says, in fact, this was about making it smoother for businesses and contractors to implement them. But in any case, more than 100 million American workers are going to be covered by these new regulations.

The OSHA regulations, Occupational Safety and Health Administration Agency apply to employers with 100 or more workers. It does not have a fixed vaccine requirement. If people decline to get vaccinated, there is a testing option. That is not the case for the 17 million workers who interact with Medicare and Medicaid, so health care workers, the argument that it is more urgent for those people to get vaccinated and, therefore, it has to be a hard requirement.

But make no mistake, we've been talking about the results of the Virginia and New Jersey elections, Biden's poor approval rating. The White House understands that job one is getting those vaccination rates up, getting the COVID pandemic in the rearview mirror, and that is the key to getting the economy back on track, getting the jobs that you were discussing with (INAUDIBLE) a few minutes ago, get the job growth back on track and growth back to what had been expected, and that, they believe, is the key to changing the political environment as Democrats look to 2022 and those midterm elections and their attempt to keep power in the Congress as well as the White House.

HILL: We will see. John Harwood, I appreciate it. Thank you.

Up next, we are live on Capitol Hill. Democrats right now huddling to decide whether they have the volts to finalize President Biden's major legislation today. Speaker Pelosi actually expected to speak a bit later this hour.

SCIUTTO: Yes, is this the deadline that holds?

Plus, jury selection that made even the judge pause. A nearly all- white jury deciding the fate of three men charged with killing Ahmaud Arbery. Why the judge is letting this go forward.

And if you are behaving badly on a flight, beware, the FAA is giving a new warning today.

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Later, we will look at how the agency is now working with the Justice Department to bring charges, criminal charges in some cases.

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SCIUTTO: Just minutes from now, we are expected to hear from House Speaker Nancy Pelosi on Capitol Hill following a big shift in strategy, it appears. She announced yesterday that she was adding four weeks of paid family and medical leave back into the broader social spending bill.

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That shift comes after Pelosi had pledged for months that she would only move forward on a bill that would pass the Senate. And, Erica, it seems perhaps the idea here is pass it to the Senate, strips it out, send something back to the House. But we'll see.

HILL: Indeed we will. Moderate Senator Joe Manchin, who said he doesn't support putting that paid leave back in the spending bill, made it very clear once again this morning on CNN where he stands. Take a listen. (BEGIN VIDEO CLIP)

JOHN BERMAN, CNN ANCHOR: Paid family leave. The Democrats in the House are putting it back in bill.

SEN. JOE MANCHIN (D-WV): Yes.

BERMAN: Does that change your view on it at all?

MANCHIN: John, I don't think it belongs in the bill, and I'll you why. That's a piece of legislation that really is needed from the standpoint if we do it and do it right.

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HILL: Joining us now, CNN Chief Congressional Correspondent Manu Raju, who's on Capitol Hill. So, as we know, House Democrats huddling right now with White House officials on getting these bills to a vote regardless of what we heard from Senator Manchin this morning. I guess the big question at this point is, is there actually going to be a vote today?

MANU RAJU, CNN CHIEF CONGRESSIONAL CORRESPONDENT: That is still unclear. In fact, at this meeting that's happening right down the hall from me right now, they have not been told exactly when that vote will be. A number of the members say, it's just not clear. What they are instead doing is going through the bill section by section, trying to outline some of the last-minute changes that have been made. This is a 2,000-plus-page bill. It will be at least $1.75 trillion, packing all aspects of the American economy.

And one thing that the White House officials, I'm told, are indicating in there is that they believe it will raise $2.1 trillion in revenue. They argue that there might be some deficit reduction as well as part of an effort to raise taxes on a whole wide range of matters.

But there's not been an official score from nonpartisan budget keepers about what exactly this bill will cause to the economy. And that is what's creating some members pause. They want to see that before they agree to vote for the bill, which is one major reason why there's expectation that the vote will not happen tonight. It could be delayed until tomorrow, potentially over the weekend, maybe into next week. All of that is uncertain at the moment.

But it does comes at time when there's still uncertainty about whether this bill could ultimately become law. You mentioned the paid leave issue and also the change in strategy. Pelosi have said for months that the only bill she would put on the House floor would be one that could get 50 votes in the U.S. Senate. The bill she plans to put on the House floor will not get 50 votes in the U.S. Senate. That means there are going to be further negotiation with Joe Manchin trying to change the bill potentially with other members who have concerns with the bill, assuming it can get out of the House, and they only have a three-vote margin if they're going to lose three votes in the House. Then they'll have to worry about getting it through the Senate and back through the House again. So, all this leads to major uncertainty whether that bill can go through even as the separate $1.2 trillion infrastructure bill also hangs in the balance and uncertainty about when that will come for a vote. And I can tell you guys there is just still some frustration among a lot of the more liberal members of this caucus. I just caught up with one, Raul Grijalva of Arizona, who told me it's, quote, offensive that Joe Manchin and Kyrsten Sinema have as much power as they do. Guys?

SCIUTTO: Well, they don't have big majorities. It's a fact, right? It's just a fact. Manu Raju, thanks very much.

HILL: Joining us now, CNN Political Director David Chalian and Margaret Talev, Managing Editor of Axios. Good to see you both this morning.

It's fascinating when we look at this new strategy from Speaker Pelosi, because as Manu just laid out for us, this could really stretch this process out even further.

David, I'm curious, adding back in paid family leave, which we know is very popular around the country with voters, is that, in some way, a reaction to what we saw on Tuesday night, that this gives them something to run on in 2022, a kitchen table issue to point to and say, look, we said this was important, maybe it didn't make it, but we knew that this is what you wanted?

DAVID CHALIAN, CNN POLITICAL DIRECTOR: Yes. I don't know that it's a direct reaction that Nancy Pelosi watched the returns and then decided to put family leave in. It seems to me she understands that the Senate process is going to be elongated and the bill is likely to change in the Senate, so why not put a popular thing that the great vast majority of her members actually want in the bill so at least they can go tout and say that they voted on the family leave to voters next year in the midterms even if it doesn't actually come into policy.

But what is interesting, I think, is the timing of when it did come, Erica, as you know. I mean, the fact that the read on the election, I think, from people across the spectrum of the Democratic Party, is that Democrats are going to need to figure a way to better address American voters where they are right now after this year-and-a-half of pandemic exhaustion, after seeing inflation doing what it's doing to the economy. And I think then saying, hey, let's make this bill more robust with social program is in an interesting take on the day after the election.

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But she clearly believes that is addressing kitchen table issues.

SCIUTTO: To David's point, Margaret, my question is, are there Democrats you speak with who are saying now, well, maybe all those priorities we put into this budget bill are not the priorities of the voters we need in 2022, things like inflation, where, granted, let's not overstate a president's ability to do really anything about inflation, but inflation, crime rates, for instance? I mean, is there a reassessment of priorities?

MARGARET TALEV, CNN POLITICAL ANALYST: Of course there is, Jim. And those are the moderate Democrats that are in swing districts who are the most likely to lose heading into next November. So I, think there are three takeaways from Tuesday's election.

Number one, there is an element of independent swing voters who are concerned that the Democratic Party is pulling things too far left, right? That's not universal. There are plenty of Democrats who are really excited about that. But there are plenty of independents or moderates who are not excited about it, reacting against it.

The second is just lingering frustration that COVID is still around, that things are bad, and you blame the party in power. And then the third is the fact that Joe Biden said, I'm normal and a reasonable person, and I can get stuff done. And yet, Democrats haven't been able to get anything done.

So, The push to get infrastructure passed to show action, to brand some things, whether it's paid medical leave or whatever it is, some things that all Americans want or maybe enough Americans want, there's agreement on that. But precisely how to do it and whether to say, we're going to lose anyway in November, we might as well get what we can, which is what some Democrats are saying, and saying let's put the brakes on this stuff to save the party's chances, minimize losses, those are two competing priorities.

HILL: David, when we look at where we are now, Thursday morning, do you sense a shift in Washington? There's all this talk yesterday morning, whether you're calling it a five alarm fire, like Van Jones did, or a wakeup call, I'm wondering where we're at Thursday morning versus Wednesday morning? Does it feel like anything has changed?

CHALIAN: Well, listen, I mean, you had this off-year election and it is the biggest electoral read we can get thus far in the Biden presidency. And you add that in with the president's low approval ratings right now, you see that Republicans had a great night, it's not so much a shift, I think it's just a check on what is the political environment.

I think Democrats learned from voters, not just from polls, that the political environment is really tough for them right now. And so how they adjust to that going into what historically would be a tough midterm election cycle this next year and how they address that, I do sense there's a conversation and a concern talking to Democrats, again, across the spectrum of the party to make sure that they are adjusting to the reality of where this electorate is now and not just thinking that no long beating Trump and the pandemic and the recession is going to be enough.

HILL: David Chalian and Margaret Talev, great to see you both this morning. Thank you.

TALEV: Thanks.

HILL: Up next, Kyle Rittenhouse back in court just a day after the jury was forced to watch several graphic videos. You're looking at live pictures now. They were watching several graphic videos of the shootings at a Wisconsin protest last year.

Also ahead, another case hinging on video evidence, the trial of three men accused of killing Ahmaud Arbery, a case that centers on race, 11 of the 12 jurors are white. Why is the judge allowing that? That's next.

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