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Judge Rules Against Trump in Insurrection Probe; Kyle Rittenhouse Trial Continues. Aired 1-1:30p ET

Aired November 10, 2021 - 13:00   ET

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

[13:00:00]

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE CORRESPONDENT: Very clear that some of the questions that he has been asking are out of line, at one point telling him that he was raising these issues about the defendant's right to remain silent.

And the judge was not holding back on that. There was another point where he was asking some questions, and the judge was not happy about that. Of course, the other key takeaway was Rittenhouse himself breaking down as he was describing the moments that he opened fire when he felt he was being ambushed and cornered, the judge then taking a break.

And from inside the courtroom, we were told by the pool note that the jury seemed sympathetic to Kyle Rittenhouse during some of his testimony. We will see how that goes. But, obviously, the direct examination was relatively short, about an hour. And since then, we have been under this cross-examination. And now, of course, as you as you saw, they just took a lunch break.

ANA CABRERA, CNN HOST: OK, Shimon, we will check back with you. And we will obviously be watching closely for when court resumes. Appreciate that.

I want to get some legal expertise in here.

CNN senior legal analyst and former federal prosecutor Laura Coates is with us, as well as CNN legal analyst and civil rights attorney Areva Martin.

Ladies, so glad you are here with me. After two-plus hours on the stand now, Areva, is Rittenhouse helping or hurting his case?

AREVA MARTIN, CNN LEGAL ANALYST: Well, it was a risky move by the defense team to put him on the stand. It always is to put a defendant on.

But I think, in this case, given how the evidence had been presented by the prosecution, that it is working for the defense. They presented a very different picture of Kyle Rittenhouse than what we have seen in the media reports.

This is a Kyle Rittenhouse that went there to do good, to take graffiti off of a school, to render aid, to help save a business. This was a very humanized Kyle Rittenhouse. And that's what the defense wanted to do. They wanted to paint him as a good guy that was there to do good and then was attacked by these men who used a great deal of force, and that he was simply doing what anyone would have done in that situation, which was to defend himself.

And as we heard Shimon say, jurors appeared to be sympathetic to Kyle as he testified, so remains to be seen, Ana, what happens ultimately. But I think so far, Kyle's testimony probably went over pretty well.

CABRERA: Laura, do you agree? Would you have put him on the stand?

LAURA COATES, CNN SENIOR LEGAL ANALYST: If I was defense, I would have put him on the stand, because, of course, remember, the publicity surrounding this trial, there was a lot of sympathetic media towards him, people who thought about him as essentially a bit of a martyr from this inflection point on racial tension in America, the idea of the amount of sort of GoFundMe-esque aids that came to his assistance.

But in the same case, if I'm the prosecution. I need him to take the stand for the reasons that came through on the cross-examination. Remember, when he was asked questions by his own attorney, you saw the waterworks coming out. He was crying. They had a 10-minute recess. He was overcome with emotion trying to revisit that notion.

(CROSSTALK)

CABRERA: In fact, Laura, forgive me for interrupting, but I want to play that moment you just brought up, when he broke down on the stand.

COATES: Yes.

CABRERA: The judge then called for a break. Let's watch.

(BEGIN VIDEO CLIP)

KYLE RITTENHOUSE, DEFENDANT: I was cornered from in front of me with Mr. Ziminski.

And there were -- there was people right there.

UNIDENTIFIED MALE: Take a deep breath, Kyle.

RITTENHOUSE: That's (INAUDIBLE)

(END VIDEO CLIP)

CABRERA: Laura, you think that was impactful on jurors?

COATES: Well, certainly, it is. I mean, the idea of your client crying on the stand overcome with emotion, if you look at this from the bare-bones aspect and looking at a defense strategy, you want to, as Areva talked about, humanize him.

But here's the rub when you have this. First of all, if you're the defense counsel, I'm sure you are -- you are furious that the judge took a break because you want that to continue. If you are capitalizing on getting the sympathetic jurors' ears, you want them to continue.

And derailing it is in the form of actually taking a break, number one.

But then notice how the cross-examination went down after that and how he then also able to describe without tears, with a level of, frankly, defiance and resolve, that he had done nothing wrong, he said, and wanting to then go to the police.

And you think about, as a prosecutor, how you counter the narrative that somebody is sympathetic. You have to show that that emotion is now devoid when I now question you as the prosecutor, that you're very, very clear on what your role was, on what you did or did not do wrong.

And there's also a moment there I think it's so impactful that when he said he first shot the first victim, and then the subsequent victims tried to then try to restrain him or stop him and take away the gun.

[13:05:12]

Well, if you're the jury, your mind starts racing, thinking to yourself, well, hold on. He's got to show there was self-defense for each of the victims. If the subsequent people that he attacked were trying to defend the first person or try to take away a gun from an armed person, does that change the narrative if you're in the jury pool?

Does that change the calculus initially? If he's trying to get away, hoping to have rescued with the police, but yet and still tries to then still shoot other people who are taking the gun away from him, it does change, which is why, as a prosecutor, you want him to take the stand and question those very key points about, all right, if you initially thought you were acting in self-defense, were you then trying to protect just the gun at that point or yourself?

That's a question that's now been raised by him taking the stand.

CABRERA: Well, the defense had Rittenhouse, right, go through the sequence of events that night, and he had the opportunity then to detail threats he says he heard from two of those that he shot and killed.

But, Areva, obviously, this isn't going to be his word against theirs. They're dead. What kind of impact does that have?

MARTIN: Very impactful.

And one thing I'll say in relationship to what Laura just said, yes, on cross-examination, what we saw was, I thought, a very rehearsed Kyle Rittenhouse. He was using terms that I don't imagine your typical 17-year-old -- he was 17 at the time, 18 now. He's a nursing student. He's not a pre-law student. He's not a law student. So he was using some terms that I would think wouldn't be in the

vocabulary of your typical 17- or 18-year-old. And jurors are smart. They're going to catch on to that. And I think he was using language that really laid out the self-defense -- legal self-defense is what his lawyers are going to argue.

CABRERA: Right.

MARTIN: And I think jurors picked up on, that this guy, yes, was very emotional on direct examination.

But yet, when it came to cross-examination, he became, as Laura said, defiant, and then he became almost like junior lawyer, using a lot of legalese and terminology. So, they're going to have to weigh the credibility. And you're right, Ana. We won't hear from those two men that he killed.

So it really comes down to, do we believe Kyle Rittenhouse is telling the truth, or is he just giving the performance of a lifetime?

CABRERA: Well, speaking of rehearsed, on cross-examination, he repeated the same line over and over again. Let's listen.

(BEGIN VIDEO CLIP)

THOMAS BINGER, KENOSHA COUNTY ASSISTANT DISTRICT ATTORNEY: Everybody that you shot at that night, you intended to kill, correct?

RITTENHOUSE: I didn't intend to kill them. I intended to -- I intended to stop the people who were attacking me.

BINGER: By killing them.

RITTENHOUSE: I did what I had to do to stop the person who was attacking me.

BINGER: By killing them.

RITTENHOUSE: Two of them passed away. But I stopped the threat from attacking me.

BINGER: By using deadly force.

RITTENHOUSE: I used deadly force.

BINGER: That you knew was going to kill?

RITTENHOUSE: I didn't know if it was going to kill them, but I used the -- I used deadly force to stop the threat that was attacking me.

BINGER: You intentionally used deadly force against Joseph Rosenbaum, correct?

RITTENHOUSE: Yes.

BINGER: You intentionally used deadly force against the man who came and tried to kick you in the face, correct?

RITTENHOUSE: Yes, right.

BINGER: You intentionally used deadly force against Anthony Huber, correct?

RITTENHOUSE: Yes.

BINGER: You intentionally used deadly force against Gaige Grosskreutz, correct?

RITTENHOUSE: Yes.

BINGER: With regard to Joseph Rosenbaum, you fired four shots at him, correct?

RITTENHOUSE: Yes.

BINGER: You intended to kill him, correct?

RITTENHOUSE: I didn't intend to kill him. I intended to stop the person who was attacking me and trying to steal my gun.

(END VIDEO CLIP)

CABRERA: So, Laura, what did you make of that back-and-forth? Was it an effective, repetitive response? Or did the prosecution accomplish anything there?

COATES: The prosecution did move the needle in that case, in that instance, in that exchange.

And it's for reasons that Areva spoke about. The idea of being overly rehearse can count against you, because, remember, the narrative that the defense needs to put forth is this idea of a scared young boy who had no business being there, he was trying to be the equivalent of an Eagle Scout, and was overwhelmed by people who sought to do him harm.

Now, if he becomes more authoritative and commanding in his presence, and aware of the rehearsal or the speech of saying, here's what I was intending to do, you don't really paint the picture of a chaotic scene where he was overwhelmed and that -- and in real time had to defend against the attacks that he says happened.

But you also have this idea here of why this attorney, the defense attorney, is well aware, and the prosecution also knows, about the elements of the crimes. When you charge these crimes, it's not the court of public opinion. You have to line it up to criminal statutes. And in those, you have to have aspects of intent and the language you can then bring to the jury later on to say, here's the testimony you heard that gets at the following element.

[13:10:00]

We have proven our case beyond a reasonable doubt with these actual elements in mind. And then the reverse is also true. The defense has to say they had the burden to prove X, Y, and Z and the intent and X, Y and Z. Here's how they failed. You heard our client.

So this was a bit of the moment when the lawyers are preparing for the end of trial, and how they sum up their cases. And his statements for the prosecution and the defense get right to that.

CABRERA: We're on a lunch break right now, in part just because of timing, but also because the judge was about to call another break to ask the jury to leave in order to have some kind of exchange with the prosecution.

He seemed to have a problem with the direction the questioning was going. And we saw a couple of other times during cross-examination the judge abruptly interrupting the Q&A, having the jury leave the room, and he actually has shown anger with the prosecutor here.

Let's listen to one of those moments.

(BEGIN VIDEO CLIP)

BINGER: That was before the defendant's testimony.

JUDGE BRUCE SCHROEDER, KENOSHA COUNTY CIRCUIT COURT: Don't get brazen with me.

You knew very well -- you know very well that an attorney can't go into these types of areas when the judge has already ruled without asking outside the presence of the jury to do so. So don't give me that. That's number one.

Number two, this is propensity evidence. I said at the time that I made by ruling, and I'll repeat again now for you, I see no similarity between talking about wishing you had your A.R. gun, which you don't have, so that you could take -- fire rounds at these thought-to-be shoplifters and the incidents in these cases, which are not -- there's nothing in your case that suggests as the defendant was lying in wait to shoot at somebody or reflecting upon the shooting for vast amount of time.

Every one of the incidents involves matters that involve seconds in time. So, I don't -- I commented at the time I don't see the similarity. And I don't see the similarity now. If it's not similar -- that's the whole rule. Those are all the exceptions to 90404.

(END VIDEO CLIP)

CABRERA: Areva, what's your reaction? Was the prosecutor out of line?

MARTIN: Yes, I think he was pushing the envelope, Ana.

And judges -- and this judge -- we know this judge has been very active. He's been outspoken. He's called me out. It's called Jeffrey Toobin out, so not surprised to hear that he's calling this lawyer out. And he is angry.

And lawyers know demeanor matters. Your relationship with the judge matters. All of that is being watched by the jurors. And jurors are listening to the facts. They're listening to the evidence, but they are also sizing up the lawyers.

So prosecutors and defense attorneys have to be very careful. You have got to be zealous in your advocacy for your case, but you cannot disrespect a court's ruling. And this was a really important ruling that the judge made about an alleged prior statement that Kyle made about wanting to have his gun to shoot at shoplifters.

Obviously, the prosecutors -- prosecution wants to get that statement in because they want the jurors to think that he went there with the intent to shoot and kill people and that he has a propensity to shoot and kill. And the judge says, no, there are no similarities, that there's not evidence in the prosecution's case that he was planning to shoot anyone or, as the judge said, laying in wait.

So he ruled that that kind of testimony, that kind of evidence couldn't come in. And the prosecution stepped over what the judge saw was the line. And he was called to task. And jurors know when they're rushed out of the courtroom, and they can see the expression on the judge's face, they see what's going on, they know something good didn't happen.

And in this case, the prosecution was really taken to task.

CABRERA: But I wonder if the prosecution was out of line, in the fact that Rittenhouse told jurors he didn't come to Kenosha looking for trouble the night of these protests. He says he wanted to provide first aid. And he laid out his experience as a lifeguard and that sort of thing.

But the prosecution was trying to emphasize, Laura, that he brought an A.R.-style weapon, if he was just coming to save lives, and this is a weapon he was too young to even be carrying. How effective was the prosecution of kind of leaning into that point?

COATES: They were good. I mean, every prosecutor has taken their share of tongue-lashings when it comes to a judge, because judges always believe that they are in control of the courtroom, but it's the prosecution's burden, and therefore the prosecution's trial.

And you heard him multiple times saying, I'd like to establish my record, explain why the door was opened. And that phrase is what Areva is speaking about, the idea of, even if the court should rule on a particular motion to suggest, I don't want the jury to hear things that are outside of the courtroom or things that you hope will get them to establish this person, once a criminal, always a criminal, or this person had already the intent formed, completely unrelated the idea of providing medical care, to come with the intent to shoot people if property was damaged.

[13:15:06]

The prosecutor thought that the door was open by virtue of Kyle Rittenhouse's own testimony. And so if the judge had ruled previously they couldn't bring it in unprovoked, if he opened the door, they are now entitled to do so. And he was making that record. And on that point, this is why it's so dangerous sometimes for

defendants to take the stand. No matter how rehearsed or smart they think they are, if they are not well-versed in the methodology of litigation, of trial procedure and evidentiary rules, they may fall victim to their own hubris.

And in this case, if Kyle Rittenhouse opened the door that exposes the Achilles' heel of what his motivation was for being there and whether he had formed some intent prior to those interactions to kill anybody who harmed property, which he admitted time and time again prior that tongue-lashing that you're not entitled in Wisconsin, under these circumstances, to use deadly force to protect property.

CABRERA: Right.

COATES: The prosecutor is entitled to go through that door.

But the record is made on the hopes of this being a conviction for the prosecution, and trying to preserve it on appeal.

CABRERA: So, Areva, bottom line, even though we still have additional questioning left here, do you think the prosecution has provided proof beyond a reasonable doubt to support the charges, including the most serious, first-degree intentional homicide and first-degree reckless homicide?

MARTIN: I surely hope, Ana, that, at the end of the day, that there is a conviction some of the accounts that have been charged.

I have some doubts. There were some things done in the trial with respect to witnesses that cause me to have some concerns about the prosecution's case. And one of them happened yesterday, when you had sort of the only survivor on, the third victim that was shot by Kyle.

During the prosecution's direct examination, they did not elicit from that witness that he had a gun and that he pointed that gun at Kyle. That came out in cross-examination. That was a big moment for the defense yesterday. Jurors don't like it when they think that prosecutors are hiding information from them.

And that was particularly troubling. And there have been some other witnesses that were called in the prosecution's case that seemed to give testimony that was more favorable to the defense. So there have been some -- I won't call them missteps, but there's been some surprises in the testimony.

But I surely hope the prosecution has done enough to establish that the Kyle Rittenhouse had no business being at that protest. He definitely had no business being there with a gun and shooting three people, killing two of them.

CABRERA: Areva and Laura Coates, I appreciate both of you. Thank you so much for your expertise and spending time with us on this.

We will return to Kyle Rittenhouse's testimony just as soon as it resumes. We have much more breaking news just ahead, including a massive blow

to former President Trump's attempts to shield documents from the committee investigating the January 6 attack on the U.S. Capitol.

Stay with us.

(COMMERCIAL BREAK)

[13:22:19]

CABRERA: We're continuing to monitor the Rittenhouse trial. This is on a quick break right now, this video from just moments ago earlier this afternoon.

And, of course, he will be returning to the stand after this break. We will keep an eye on it and bring you there as soon as court resumes.

Our other big story today, the massive blow for former President Trump, a federal judge ruling that the House select committee can have access to more than 700 pages of documents from Trump's presidency, including call logs, schedules, handwritten notes.

In her ruling, Judge Tanya Chutkan eviscerated the former president's claim of executive privilege with these key lines: "Presidents are not kings and plaintiff is not president." She goes on: "The court holds that the public interest lies in permitting, not enjoining the combined will of the legislative and executive branches to study the events that led to and occurred on January 6, and to consider legislation to prevent such events from ever occurring again."

Trump says he will appeal, but, as of now, the select committee is on track to get access to these documents this Friday. While members wait, they're issuing even more subpoenas. They want to talk to 10 more former Trump White House officials, including Stephen Miller and Kayleigh McEnany.

Let's get straight to CNN congressional correspondent Ryan Nobles.

Ryan, what do these latest subpoena targets all have in common?

RYAN NOBLES, CNN CONGRESSIONAL CORRESPONDENT: Well, the one thing, Ana, that is most interesting about this group of subpoenaed targets is where they were on January 6. And almost all of these individuals in this latest round of subpoena targets spent some time with the former president in and around the events leading up to and on January 6.

Some of them for instance, like his body man, Nicholas Luna, were in the Oval Office with him as he was making key phone calls. Others had conversations with him throughout the day. You mentioned Kayleigh McEnany, his former press secretary, Johnny McEntee, who is the personnel officer and was his former body man, someone that was very close with President Trump.

So what the committee is looking for -- and it's outlined in their subpoena requests -- is information about what these individuals witnessed on those days, what conversations took place, who was the former president talking to, and were those conversations anything that contributed to the violence and chaos that we saw here on January 6?

And this is, of course, the second round of subpoenas that were issued this week. On Monday, we saw subpoenas issued by to a group of individuals that played a big role in peddling the big lie in between November and leading up to the January 6 insurrection.

So you see two things at play here, Ana, the committee looking to build a case that spreading the big lie is what inflamed Americans across the country and compelled them to come here, and then what took place on that day to perhaps compel them to come and raid the Capitol? That is something that the committee is trying to deal -- to drill down.

[13:25:16]

And you mentioned these documents that they won a big court battle in yesterday, the release of these 700 different documents. These are important. They include call logs, communications that the former president was involved in, draft speeches, even handwritten notes. This is part of what they're trying to do to connect the dots about what went wrong on that day and what, if any role the former president played.

Ana, you mentioned there may still be somewhat of a battle to get that information in their hands. It's scheduled to be released by the National Archives as soon as Friday, but the Trump administration, the former Trump administration already asking for a stay while the appeal process plays out, so a legal battle still ahead of us, Ana.

CABRERA: Oh, we are anxiously awaiting all of it. Thank you so much, Ryan Nobles.

Let's discuss it with former White House ethics czar Norm Eisen. He's also the former special counsel to the House Judiciary Committee during Trump's first impeachment trial. Also with us, former Deputy Assistant Attorney General Harry Litman.

Guys, thank you both for jumping on with us. It's the first chance we get to hear your reaction to this ruling overnight.

So, Norm, help put in perspective this ruling. How big, how impactful, how historical is it?

NORMAN EISEN, CNN LEGAL ANALYST: Ana, thanks for having me back. It's wonderful to be on with my old friend Harry.

This is an extremely impactful and important ruling. The judge has brushed aside Trump's claims that a former president continues to have rights over his documents, over executive privilege.

Ana, in a way, what Trump was arguing was a continuation of his big lie, that he didn't really lose the election, because he's claiming he still has powers. That's anathema to American rule of law. The judge properly slam-dunked him. And she did it fast, a little over three weeks.

Trump is an expert at losing the battle, but winning the war through delay. She slammed the door on that. The appellate courts must do the same.

CABRERA: So let's talk about that part, Harry, because Trump says he's going to appeal. He's asked for a stay. Can he stop these records from being released on Friday?

HARRY LITMAN, FORMER U.S. ATTORNEY: Yes, so the first thing is -- and Norm is right about the opinion, and evisceration really, Ana, is not too strong a term.

He can, but right now the clock for a change is ticking against him, unless they quickly stop the music. And you can be certain they're keenly aware of the timing here, keenly aware of the issues, and it's an overall Democratic-leaning court. In normal order, it'll just go out on Friday. So he's sweating it.

I do think the Court of Appeals might enter a short stay to consider it, et cetera. But they will act quickly in any event. And unless and until they do, he's behind the eight ball. And the opinion harm -- takes him out of the water not just on being the former president, but everything, this new round of subpoenas involving basically campaign activity.

Chutkan also says, look, that's not presidential decision-making. That's not covered by the privilege. She also says the public interest is paramount in hearing it. If this opinion holds up, there's three ways in which it completely destroys not just his claims, but the ones that the Bannons and Clarks of the world are wanting to be making in response to the current round of subpoenas.

CABRERA: Yes, we're going to talk about that in just a moment.

But, Norm, one quick little button on this issue about the records, which we know include hundreds of documents, including the call logs, visitor logs, draft speeches, schedules, and at least three pages of handwritten notes by Trump's then-Chief of Staff Mark Meadows.

You previously told me that you thought the judge might allow some documents to be released, but not others. Her ruling did not exclude anything. What does that tell you?

EISEN: Well, she clearly did not fall for the argument that Trump's lawyers were making that some of this was outside the bounds.

Ana, you will remember we discussed, for example, whether polling information from earlier in the year was relevant to the determination. It all goes to Trump's state of mind.

And while I understood where she was coming from, I thought that the government had the best of the argument. And she ultimately agreed. CABRERA: Now, the January 6 Committee obviously will have this as a

victory at the moment, just as it issued 10 new subpoenas for former Trump officials, including former Press Secretary Kayleigh McEnany, former senior adviser.