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Testimony in Ahmaud Arbery Trial Continues; Another Astroworld Festival Attendee Dies; Kyle Rittenhouse Trial Continues; Trump Continues Efforts to Stop Document Release. Aired 3-3:30p ET

Aired November 11, 2021 - 15:00   ET

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

[15:02:18]

ALISYN CAMEROTA, CNN HOST: Top of the hour. I'm Alisyn Camerota.

VICTOR BLACKWELL, CNN HOST: I'm Victor Blackwell.

Good to be with you.

We're starting this hour with the last-ditch effort by former President Trump. His attorneys just asked a federal appeals court to stop the release of key White House records to the lawmakers investigating January 6.

Now, a lower court has denied his multiple requests. And unless this most recent request is granted, the National Archives will start turning over disputed records tomorrow.

BLACKWELL: Lawmakers subpoenaed more than a dozen members of Trump's inner circle this week. Now the committee is shifting its focus to former Vice President Mike Pence's inner circle.

CNN senior legal affairs correspondent Paula Reid joins us now.

So, Paula, it sounds like this next 24 hours is critical.

PAULA REID, CNN SENIOR LEGAL AFFAIRS CORRESPONDENT: It's so critical, Alisyn.

The National Archives inherited Trump's records after he left office. And as of right now, they are scheduled to hand over some of these records to the House select committee investigating January 6 by tomorrow at 6:00 p.m., according to Trump lawyers. And, of course, Trump is asking for that handoff to be delayed while he appeals this decision that says he can't keep these records secret from the House select committee.

No, it is highly likely that the appeals court here in D.C. will grant a delay of this handover. But this is an incredibly interesting case. It raises a lot of novel questions about the power of a former president to keep certain records secret, when the current president does not want to keep them secret and wants them released.

So it is likely that this is a question that could go all the way to the Supreme Court. So far, it's looking good for the committee. The legislature wanted these documents. The White House said they should be released. And, so far, so far, the courts have affirmed that.

BLACKWELL: Well, there's new reporting on the committee's frustration, let's call it, with the former Chief of Staff Mark Meadows to. Talk to us about that.

REID: Victor, this is really big, because, originally, when this investigation started, in speaking with former Trump administration officials, they all thought that if anyone was going to be protected by privilege, it would be the former chief of staff, Mark Meadows. If anyone was going to get any modicum of protection, it would be him.

And here we're learning that, as the committee -- and sources tell us that the committee's patience is running out with a former chief of staff, he is now under more pressure because he has been put on notice by the White House that President Biden does not intend to assert any privilege or immunity over any of the things that the committee has asked Meadows for.

This is truly significant, because, again, if anyone was going to get protection, it would likely be him or White House counsel, and here the Biden White House saying, look, there are circumstances where we would assert privilege over a former chief of staff, but this is not it.

We have seen repeatedly from the White House counsel, from President Biden that they believe what happened on January 6 was extraordinary, and that is not what privilege is for, to protect information related to events like that.

[15:05:07]

BLACKWELL: All right, Paula Reid, thank you so much.

Let's bring in CNN senior legal analyst Elie Honig. He is a former assistant U.S. attorney. And CNN Supreme Court analyst Joan Biskupic.

Welcome to you both.

Elie, let me start with you.

Reading this latest decision from the judge, Chutkan, it essentially says, I meant what I said, right? I don't -- she just decided hours essentially ago that she's not going to side with the Trump attorneys. And then they come back and ask the same question with no new -- no case, no new evidence.

ELIE HONIG, CNN LEGAL ANALYST: Yes, Victor. So that's ordinarily the way it goes. If you lose a case, as Donald Trump just did, you usually have to start out by going back to that trial court level, that district court level and saying, OK, we understand we have lost, but we want you to put it on hold, so the court of appeals can handle it.

Judges often say no in that situation, for the reasons you just outlined. They said, look, I ruled against you yesterday. I rule against you today. And then what you do, though, is what Donald Trump is doing right now in trying to get the court of appeals to take the case. Now, will the court of appeals take the case?

As Paula said, there could be good reasons for it, because if they don't stay the case, those records go over tomorrow, and it essentially moots a big part of the appeal. And so the court of appeals may say, look, we will put this on hold temporarily because this is an important issue. This is unprecedented constitutional grounds. We want briefing. We, the court of appeals, want a chance to make a decision here.

CAMEROTA: OK, Elie, one more follow-up to that. So you think in the next 24 hours, it is likely that we will see a stay from the appeals court?

HONIG: Alisyn, if you -- if I need to commit, I will go on the side of likely.

I do think it's more likely than unlikely for exactly that reasons. There are big institutional interests here for the court of appeals itself. I think, ultimately, Trump is absolutely going to lose this case and the committee is absolutely going to get the documents. But I think the court of appeals wants to have a say. That's their role.

And I do have to add, if they do issue a stay, they can do this very quickly. They can say we're putting this off three weeks. Trump, you have one week to brief it. Committee, you have one week to decide. Then we're going to do arguments. Judge Chutkan just got it done in three weeks.

The court of appeals can too.

BLACKWELL: Joan, you have got a new fascinating piece up on CNN.com that explains how a Nixon era ruling from the high court is applicable here. Explain that.

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: Sure, Victor.

We have been talking about how novel this situation is for a former president to be trying to exert the executive privilege while the current president is refusing to. And back in 1977, President Nixon, who seems, Victor, to have been a touchstone for much of what's happened with the Trump presidency during his years in office, and now right after it, there are always echoes of President Nixon -- and here we have it again.

President Nixon was trying to hold on to Watergate tapes that he wanted to keep from the Archives, and he wanted to destroy those tapes. And it went to the Supreme Court. And the Supreme Court said, first of all, as a threshold manner -- matter, a former president does have a right to exert executive privilege. But in that case, there were other concerns.

The public interest in obtaining documents and tapes from the Watergate scandal overrode that. And the court at that time noted that the executive privilege right actually, is something to be owned by the republic, not by an individual president, whether current, past, especially past. And in that instance, the justices who sided with the -- it was the General Services Administration at the time that wanted the records -- said, look, Presidents ford and Carter, who came after President Nixon, they weren't exerting executive privilege, and that made part of the difference in that case.

And we have got the same thing here. Even though we have never had a situation where the sitting president is absolutely refusing to exert it, it's enough like that I just don't see how President Trump is going to prevail in the end, based on Supreme Court precedent.

CAMEROTA: Joan, I'm just going to read -- we put it up on the screen, but I'm just going to read it, because I think the language of the Supreme Court is interesting from the 1977 ruling that you just talked about.

"The privilege is not for the benefit of the president as an individual, but for the benefit of the republic."

So that seems like it would be the precedent. So, Joan, do you think that this case, this Donald Trump records case, is headed for the Supreme Court ultimately?

BISKUPIC: Ultimately, probably, Alisyn, and I will tell you why.

He has -- he's probably going to lose at the court of appeals, ultimately, because he just doesn't have the legal arguments right now that would overcome what Judge Chutkan wrote this week and what would overcome precedent. It's really unusual for him to be asserting this kind of privilege over -- let me emphasize that these are public records.

[15:10:05]

These are records that belong to the people. They don't belong to Donald Trump. This isn't like what we had last year when we had this dispute that went all the way to the Supreme Court over his private financial documents. These are -- these are documents that are in the public interest. And that's been the emphasis of the January 6 committee in the House, that these are things that the people need to have access to.

So he doesn't have -- he's on very shaky legal ground here. And I presume, as Elie does, that he will ultimately lose at the court of appeals. And because he's -- because of how strongly he feels about things, Donald Trump will, of course, appeal to the U.S. Supreme Court. And that is his right. That is his right to try to do that.

And I think even with this increasingly conservative Supreme Court with now three appointees of Donald Trump, I believe in the end that he will lose. Now, I will hedge a bit, the way Elie just did, not knowing what's going to happen, not having seen the full briefing or oral arguments, but, again, precedent is really not on Donald Trump's side.

CAMEROTA: Guys, we have you on tape, OK? (LAUGHTER)

CAMEROTA: So don't try to deny later what you both predicted today, OK?

BISKUPIC: Well, wait a minute. Speaking of tapes, we're going to try to withhold those tapes, just like Richard Nixon did, Alisyn.

(LAUGHTER)

CAMEROTA: Understood.

Elie Honig, Joan Biskupic, thank you both.

We're getting some breaking news right now on that deadly Astroworld music festival. CNN has just learned then another concertgoer has died.

Texas A&M student Bharti Shahani passed away after spending nearly a week fighting for her life in a Houston hospital. She was 22 years old, and her passing brings the festival death toll now to nine.

Let's bring in CNN's Rosa Flores.

Rosa, tell us more.

ROSA FLORES, CNN CORRESPONDENT: This is what officials were afraid of, the officials that I have been talking to, because there were two individuals who were in critical conditions still hospitalized.

And now the devastating breaking news here out of Houston is that the death count in the Astroworld festival tragedy has increased to nine, the latest death, 22-year-old Bharti Shahani. She's 22 years old. She was studying at Texas A&M University. Her major was electronic systems engineering technology.

She had attended this concert with her sister and with her cousin. And her parents, her family, are having a very emotional press conference right now, telling the world that they have lost their loved one, her mother very, very emotional, telling us more about her daughter. Take a listen.

(BEGIN VIDEO CLIP)

KARISHMA SHAHANI, MOTHER OF VICTIM: What happened to my blessing, though? I want my baby back, you know? I won't be able to live without her.

It's like -- it's impossible. You know what I'm saying? I'm empty here. My Bharti.

(END VIDEO CLIP)

FLORES: Again, Bharti Shahani was 22 years old.

Now, there's a 9-year-old also fighting for his life. He goes by E.B.. According to his family, he has injuries to multiple organs. He is still fighting for his life. He's the last individual, according to the fire chief here in Houston, that is still hospitalized following the Astroworld festival tragedy.

Now, all this as the investigation here in Houston still continues. The lead investigating agency is the Houston Police Department. Now, we have heard of a lot of finger-pointing. There's multiple lawsuits, Alisyn and Victor. There's a lot going on, but we can't lose sight of the fact that there are so many people grieving because they have lost loved ones, others because they're injured or traumatized by this terrible tragedy -- Alisyn, Victor.

CAMEROTA: Just horrible, just horrible, horrible breaking news there.

Rosa Flores, thank you very much.

And we will be right back.

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[15:18:55]

BLACKWELL: Right now, Kyle Rittenhouse's defense team is calling witnesses in his double homicide trial. He killed two men, injured a third last summer in Kenosha, Wisconsin.

Rittenhouse says that he was acting in self-defense. Now, again today, prosecutor Thomas Binger tangled with Judge Bruce Schroeder.

(BEGIN VIDEO CLIP)

BRUCE SCHROEDER, KENOSHA COUNTY CIRCUIT COURT: Is there something that I'm seeing that drives the face that you're making?

THOMAS BINGER, KENOSHA COUNTY ASSISTANT DISTRICT ATTORNEY: I...

SCHROEDER: Go ahead. Say what you want to say.

BINGER: I have to say, Your Honor, yesterday, I was the target of your ire for disregarding your orders. Today, the defense is disregarding your order.

As I said, I was under the court's ire.

SCHROEDER: No, I don't want to talk about -- why don't we just...

BINGER: Well, I think it's a fundamental fairness issue, Your Honor.

SCHROEDER: All right, say what you want to say.

BINGER: If I'm being held to obey the court's orders, I'm asking that the defense be held to that too.

This is something we litigated at a Daubert hearing. We spent time on this.

SCHROEDER: I am going to interrupt you, and then I'm going to let you talk again.

But I was talking yesterday about the Constitution of the United States, and how the Supreme Court has interpreted it for 50 years. That's not what we're talking about here today.

(END VIDEO CLIP)

[15:20:07]

CAMEROTA: CNN' Shimon Prokupecz is in Kenosha for us.

Shimon, these disputes have taken place outside of the presence of the jury because they had been sent away primarily for these. But do you get the sense that the jury is picking up on some tension?

SHIMON PROKUPECZ, CNN CRIME AND JUSTICE CORRESPONDENT: It's hard to tell.

Certainly, I think when the jurors know that they're being told to leave, they know something's about to happen, that something's gone on, on in the courtroom that they -- that perhaps the judges unhappy about, that the attorneys are unhappy about.

I can tell you that, in the beginning of this trial, I was sitting in the courtroom. The judge said he tried to minimize these kinds of things, where he would have to have the jury leave the courtroom. He didn't want to disrupt their day. He's very conscious about what the jury is doing. He's worried about the temperature.

He's polling them during the trial, asking them, are any of you too cold? Any of you too hot? He's worried about their food, and if their food comes in early, and if it's hot food. So he's very conscious of the jury. So he tries to do everything he can to make sure that they don't see this kind of disruptions.

But, certainly, you have to wonder if this jury is realizing that something is going on. I mean, they're people. They can sense things. Like you said, all of this happening outside the presence of the jury.

But this judge certainly has been very interesting throughout this trial. He has made comments that some people certainly have found strange. He's commented about the Bible. He's made other kinds of comments that sort of -- where he's gained a lot of attention, and certainly made a lot of headlines.

So seeing yesterday, some people certainly have felt that what he did yesterday was inappropriate, over the line. Today, there is this tension between the prosecutor and the judge, but they seem to be fine and getting along.

What's happening now, as you can see inside the courtroom, this is the last witness. This is the last defense witness who is on the stand. He's that use of force expert that they brought in. He was introducing some photos, talking about the sequence of events, specifically the timing. That is it. He's expected to be the last defense witness, and they're going to rest their case. And now we wait to see if prosecutors put on a rebuttal, whether or not they're going to call more witnesses. And then we should get word here today whether or not there's going to be closing arguments. Obviously, that would be a big step. And this case would then go to the jury as early as next week.

CAMEROTA: OK, Shimon, thank you for all that. Come back to us if there's any big developments.

BLACKWELL: Let's go to Georgia now, day five in the murder trial of the men who killed Ahmaud Arbery.

Right now, the jury is watching a recorded deposition of Larry English. He's the man who called 911 about people visiting his construction property in the months before Arbery's killing.

CNN's Ryan Young is live outside that courthouse in Brunswick.

So what are the jurors hearing in this recorded deposition?

RYAN YOUNG, CNN NATIONAL CORRESPONDENT: Yes, Victor and Alisyn, look, this is so very important.

Larry English is really at the center of this when you think about it, because he's the man who started calling 911. It's also his video that he was sharing with other neighbors that got everyone in this neighborhood worried about someone visiting his property.

But when you think about this, apparently, his health is not very good. So he did a recorded deposition. And I can tell you from the court notes we can see that some of the jury is starting to have trouble paying attention to it.

In fact, some of them have been closing their eyes. This has been going on all day in terms of, like since 9:00 this morning, they have been watching this video, question after question.

But listen to this exchange talking about the house itself and him calling 911.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: At any point during your interactions with the McMichaels, did you ever give them permission to go on your property, express permission?

LARRY ENGLISH, WITNESS: No.

UNIDENTIFIED MALE: Did you ever tell them they couldn't go on your property?

ENGLISH: No.

UNIDENTIFIED MALE: Did you ever personally tell the McMichaels about the prior incidents at your house? ENGLISH: I'm not sure.

(END VIDEO CLIP)

YOUNG: Yes, sometimes, in the case, there's drama inside the courtroom. Most of the drama has happened outside, but outside of the jury box, where they actually were outside the room when Kevin Gough decided to talk about why he was upset that Reverend Al Sharpton was in attendance yesterday, even said maybe Jesse Jackson would show up.

Of course, he hasn't been here. Take a listen to this attorney, the defense attorney, kind of got the judge about who's visiting the courtroom.

(BEGIN VIDEO CLIP)

KEVIN GOUGH, DEFENSE ATTORNEY: If we're going to start a precedent starting yesterday where we're going to bring high-profile members of the African-American community into the courtroom to sit with the family during the trial in the presence of the jury, I believe that's intimidating and it's an attempt to pressure, could be consciously or unconsciously, an attempt to pressure or influence the jury.

(END VIDEO CLIP)

[15:25:00]

YOUNG: Yes, Alisyn and Victor, he wasn't even aware that Al Sharpton was in the room yesterday.

He brings it up after he saw the media coverage of it. So the judge was like, why are you bringing it up?

GOUGH: He goes, I just wanted to bring it up.

That happened outside the jury. But what has happened outside of court is, you see this protest. And we're going to show you some video. This just wrapped up in the last 30 minutes or so, several dozen people taking to the streets of Brunswick to have their voices heard about what's happening here, because they want to make sure justice is served.

It seems like every single day it's sort of building when it comes from the civil rights community for demanding justice for Ahmaud. But still, at the same time, you see the tension in court, but this tape, this deposition was, could be so very important, is sort of boring the jury at this point.

It's been pretty hard to watch all day long, this taped deposition -- guys.

CAMEROTA: OK, Ryan Young, thank you very much for the latest from there.

BLACKWELL: Thank you, Ryan.

CAMEROTA: So, inflation hitting a 30-year high. How much more you will have to pay for your holiday meal -- next.

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[15:30:00]