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Steve Bannon in Federal Court; Closing Arguments in Kyle Rittenhouse Trial. Aired 1-1:30p ET

Aired November 15, 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]

ANNOUNCER: This is CNN breaking news.

ANA CABRERA, CNN HOST: Hello. I'm Ana Cabrera in New York.

The prosecution's closing arguments and the Kyle Rittenhouse trial has begun. Right now, the jury is in a short lunch break. Rittenhouse, who is now 18, is facing five charges related to three separate shootings that left two people dead, another injured, the shootings taking place during protests in Kenosha, Wisconsin, last summer, after police shot Jacob Blake.

Here are the charges against Rittenhouse, reckless homicide, two counts of reckless endangerment, intentional homicide, and attempted intentional homicide. The most serious charge carries a sentence of life in prison. Rittenhouse has pleaded not guilty to all charges.

The judge has allowed lesser charges for two of these original accounts to be considered, if the prosecutors are unable to prove those more serious counts are beyond a reasonable doubt, they're not able to prove them beyond a reasonable doubt.

Also today, a sixth misdemeanor weapons charge was dropped. And that marked a stunning blow to the prosecution. We will discuss all of that in just a moment. But here's where the trial stands right now. Court is in lunch break. Up next, the prosecution will finish their closing arguments and then the defense gets two-and-a-half-hours for their closing argument.

And after that, the prosecution has an opportunity for rebuttal. The jury will then be randomly narrowed down from 18 to 12 using this raffle tumbler, and then the deliberations began.

Let's discuss everything that has happened so far today with our legal experts, Laura Coates, former federal prosecutor, and Joey Jackson, criminal defense attorney.

Thank you both so much for being here.

Laura, a lot has happened this morning and early this afternoon.

First, your reaction to the prosecution's closing arguments so far, and this lunch break coming in the middle of the closing argument. LAURA COATES, CNN SENIOR LEGAL ANALYST: Well I would never want a

break, because I don't want any of the steam that I'm building in the momentum of trying to be persuasive to the jury to be interrupted in any way or derailed.

The prosecution has come out of the gate trying to simplify this in a way that the jury instructions, boring, but important, cannot do, which is to simplify it and say, this case is about a 17-year-old outside of the community who shot two unarmed and wounded a third men, and did so with a gun that wasn't even his, the idea of him being somebody who was lying about his motivation for wanting to be there, a thrill-seeking teenager who was a danger to the society.

But the issue here, of course, comes down to those jury instructions, Ana, which is the jury has got to look at the self-defense claim through the eyes of Kyle Rittenhouse. Hindsight might be 20/20, but it has no real place here in the jury instructions. And to that point, this is a very difficult case for the prosecution.

I don't want to mince words or give people any sort of dreamed this might be an easy, slam-dunk case. It is not, because, in Wisconsin, you only need to prove a very low threshold of trying to say that you were entitled to use self-defense. The prosecution has to keep the burden. And they are the ones in Wisconsin who has to now disprove that Kyle Rittenhouse was entitled to a claim of self-defense.

And so here's where we are there. They're just in the very early stages, but it's still a very hard case for the prosecution.

CABRERA: So, Joey, as the prosecution tries to do just that, we heard in this first part of their or their closing argument here, the prosecutor saying Rittenhouse provoked this incident, and he used that term provoke or that word multiple times, that ultimately led to Rosenbaum's death.

Now, Rosenbaum was the first person who he shot and killed. And then we saw him replay this video in slow motion over and over again showing just how far away Rosenbaum was to Rittenhouse when he opened fire.

Now, Rosenbaum did not have any kind of kind of firearm on him. And we heard in the testimony from Rittenhouse previously that he knew that. He knew Rosenbaum was unarmed.

So your thoughts on the strength of that argument and the evidence, the video evidence of just how far away Rosenbaum was?

JOEY JACKSON, CNN LEGAL ANALYST: Yes, great question, Ana. Good to be with you and Laura.

Listen, the bottom line is that the prosecution was buoyed by this notion of provocation, right? That's very important. It's important because the judge instructed on it.

[13:05:07] What does it mean? It means, yes, you are -- you have a right to defend yourself. You have a right to self-defense, right? If you feel -- three pillars, very quickly -- that you're in immediate fear of death or serious bodily injury, you can respond. That response has to be proportionate to any threat posed, and, of course, it has to be reasonable.

However, in the event, for example, Ana, that you provoked it, that you were the initial aggressor -- and, in the opening statement, let's be mindful of what the prosecution was doing. He said, when he raised the rifle, that is, the defendant, Mr. Rittenhouse, provocation, that's what it equals.

To your point, he was far away. Does that go to reasonability when you're shooting your firearm or anything else? So the fact is, is that the prosecution is trying to establish that Rittenhouse was the aggressor. Rittenhouse brought on these things because he created the danger.

And if the jury buys the fact that the danger was created by Rittenhouse, that he acted unreasonably, and that his response, the shooting of the rifle multiple times, was disproportionate to any threat that was posed, he loses the privilege of self-defense. So this is a battleground argument, right?

Last thing. In politics, you have battleground states, things you have to win. For the prosecution, if they can win this argument of provocation, that voids the notion of self-defense, and it gets them a conviction. I think they have a heavy task in doing it. But they're focused very, very carefully on that issue, and hoping if you're the prosecutor to overcome it, so that the jury says, you know what, he was the initial aggressor, he did provoke it, I'm not giving him that benefit.

CABRERA: And I think it's important to make sure our viewers realize also that they have to look, they, the jury, have to look at each of these charges and each of these shootings for all three people who were involved...

JACKSON: Separately.

CABRERA: ... who were shot, yes, separately. So they could, I suppose, say, yes, he provoked the shooting that resulted in the death of Rosenbaum, but they might not believe so in the other cases and vice versa, right?

COATES: Yes.

CABRERA: Laura, you pointed out that, when the jury evaluates the need for lethal force, the judge instructed them that they may consider whether Rittenhouse had the opportunity to retreat with safety, retreat was feasible and whether he knew of opportunity to retreat.

And that plays into this.

COATES: It absolutely does.

And you're absolutely right on the first notion here. Remember, you don't just get to say, because you may have been entitled to exercise or use self-defense with the first victim, it doesn't become sort of through osmosis that you're able to then assert it for everyone.

Remember, the prosecution has tried to prove that, even in the event that Rosenbaum posed some sort of provocation or pose some threat, you still have to prove or still have to establish that you were acting in self-defense for the remaining two victims. And, of course, one has died. We cannot hear from that person. And the other one took the stand in a way that actually inured to the benefit of the defense more than anything.

But you see Kyle Rittenhouse can't just say, OK, as a domino effect, it applies to everyone. But on the issue of -- he has no duty to retreat. The judge has told them that, no duty to retreat. However, they can, when assessing the use and the level of force that he's used, figure out, was there a nonlethal means he could have used? Could he have gotten away? Could he have escaped?

And to Joey's point, the idea of provocation becomes all the more important, because, in Wisconsin, and in this trial, as been instructed, if you provoke, you lose the right to claim self-defense. However, if, by your action, it causes somebody to then attack you, and then you believe reasonably that you have some fear of imminent bodily harm or death, then you can use -- you can use some level of force and self-defense, after you have exhausted all means of trying to get away or escape.

The prosecutor honed in on that point, when he asked the question rhetorically, did he exhaust all means to try to leave? Did he actually, in trying to end the assault that he actually provoked, did he do everything he could to get away? And they say no.

And so all this is all building on one another, Ana, which is why it's incumbent to realize those jury instructions, when you're trying a case, you live and die by the jury instructions, what they have to actually abide by. You can infuse their common sense with the actual law, and they're trying to do so now.

CABRERA: That's right, because the majority are not lawyers, the majority of us. We're relying on you to help be our guide here.

And yet, Joey, when those jury instructions are so crucial, they were confusing. The judge even seemed confused by his own instructions as he was reading them in front of the jury. This is the judge. What's the jury supposed to make of this?

JACKSON: Yes, Ana, it's a very good point. So jury instruction are really the rules of engagement, right? Remember how the process works.

[13:10:03]

The judge is the person who's about the law. Think about a sporting event, where you have a person that dictates the fairness, the referee, calling balls and strikes, right, saying this is a foul, this is not a foul. That's what judges are for.

They make or take no position as to the facts. That's in the province of the jury, and the jury exclusively. But when the jury is doing that, Ana, they have to know, how do we apply those fact? How do we match them with the law, such that we can come out with a verdict?

And to your point, oftentimes, they are confusing. This is how you get around it, though. Remember when he started, that is the prosecutor, Mr. Binger, in delivering his opening -- excuse me -- his closing statement, he said, and then I'm going to match everything, right, to these jury instructions.

You are educated by the lawyers. The prosecutor has a view of the evidence that they want to urge upon you as the jurors. And at the end of the closing, and during the closing, you interweave the different crimes to the facts. So when the jurors are back in the deliberation room, they could get those facts, look at the jury instructions, as you articulated them in your closing and in your argument.

But make no mistake about it, Ana. The defense will do the same thing. Only, they will spin those facts to apply to those rules in a different way. So, yes, they're confusing, but you have a few bites at the apple. Number one, the judge explains it. Number two, the prosecutor in the closing explains it from their point of view. Number three, the defense explains it in their closing through their point of view.

But number four, in the event they're still confused, the judge can reiterate and allay their confusion by explaining to them again during deliberations what these charges actually mean.

But you're right. It can be a very complicated process for laypeople, who are just there to get right.

CABRERA: Yes.

Well, and I guess the jury could ask questions specific to certain charges as well as they are going through deliberations.

JACKSON: Yes.

CABRERA: Sometimes, we see those notes go to the courtroom during those deliberations.

Before we talk specific to the defense's arguments and what we can expect later today, Laura, I do want to get your reaction to the judge dropping the weapons charge.

COATES: You know, this was not unexpected, in this sense.

The prosecution always has the burden to prove beyond a reasonable doubt. But it requires you to look element by element, the idea of every word matters when you're talking about the criminal code. The elements of the crime must be proven, each one of them. And so what was required in this case was to demonstrate for a possession offense here that the length of the barrel of the assault rifle, the AR-15 that was used, was not short or was short. The idea here is, in Wisconsin, 17-year-olds can actually possess certain levels of rifles or shotguns, provided the barrel is not short.

What the prosecution, therefore, had to prove was that Kyle Rittenhouse did not fall under this loophole, that he was not somebody who was violating this allowance to have and possess a weapon. They have now conceded that the barrel itself was not short. And if it's not short, the loophole then applies to Kyle Rittenhouse.

Now, the reason you would have this come up now, as opposed to really early on in the trial, might just be the fact that the prosecution thought that they could prove something to the course of their case or an earlier judicial ruling was going to inure to their benefit. And right now, it's not worth it for a prosecutor to have a technicality argument work against them in the jury deliberation room.

You do not want the jury to think to themselves that your inability to prove a particular element rendered you inept to prove anything else, or that you give the jury an opportunity to say, you know what, he did something wrong here, but we feel bad for him, we don't want to get him on homicide and murder charges. Let's make something stick. And here you go.

You have now taken it off the table, this non-felony offense, and you're forcing the jury, you got to take a stand. Is he guilty or not of serious crimes?

CABRERA: But the judge did allow the addition of lesser charges on some of the counts.

Joey, one of them was involving shooting the victim who survived. What do you see as the significance of the judge allowing this?

JACKSON: Yes, so it's very significant. So what happens, Ana, is that you look at the actual facts again, and you determine whether there's a reasonable view of the evidence that goes and supports other charges that are not before the jury.

Now, what happens is, is that you have your -- you can pick your poison. Prosecutors, historically, they charge you with a whole bunch of things, and if something sticks, they win, so a lesser included offense being added is not the count that you wanted, but it's a count that is lesser of the count you wanted.

For example, if it's not intentional murder, well, maybe it could be that you acted recklessly. And there's a view of the evidence that you consciously disregarded the risk by virtue of your conduct that was reckless. It gives the jury more to think about with respect to more things that you could have done that make it a crime.

And so it exposes you as a defendant. On the other hand, it's beneficial to a defendant, because the jury may not want to convict you of the top count and something lesser. And as defendant, you give them that lesser choice.

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And so those are -- that's what the jury is really considering when they get these lesser included offenses to add. They're sometimes beneficial for the prosecution, but they can also be beneficial to a defendant.

CABRERA: It's been a very quick trial, eight days of testimony in this trial, 31 different witnesses.

Laura, how much of what we hear today can make a difference in a case like this?

COATES: I mean, it's always about the theory of primacy and recency, which is what every prosecutor and defense attorney wants to do.

The very first thing that a jury hears is going to be very important for first impressions to actually establish those notions for them, and the last thing that they hear. And so, the longer the trial, the more distance there is between those things and more incumbent upon the attorneys to summarize in a way where they can recall things.

The fact that this is a very short trial means you have got the idea of amnesia not setting in. People have recalled what happened four or five, six days ago, two, three days ago, last Friday, or Thursday, as opposed to a more lengthy trial.

And so the prosecutor and the defense have to be more precise in what they are summarizing, because jurors will remember. Now, on the moments that come in between, the sort of issues of the case that are not going to be the most beneficial, you want to sort of bury the lede. But it's your job at that point to try to persuade and leave the jurors with the last impression that will lead to the result that you want.

And so an eight-day trial is very quick. It's good for the expedience of justice. It's good for the defendant to be able to get this over and potentially done with. But if you're the prosecutor, if you're the defense, you have a bigger role here to streamline, condense, compartmentalize and persuade all at once.

CABRERA: Joey, in 30 seconds, what does the defense need to do?

JACKSON: Yes, the defense needs to do three things, I think, Ana.

They need to, number one, establish that their client was in immediate fear of death or serious bodily harm. They will do that through the facts. They will do that through pointing out the environment. You heard defense witnesses describe this as a mob, as a riot, all these videos as to the tensions, the combustibility. That's why my client was in reasonable fear of death.

Number two, they will pivot to the issue of proportionality. The force you use, Ana, has to be proportionate a threat pose. And, quickly, the prosecutor is saying, as Mr. Rosenbaum was falling down, he was continuing, that is, Rittenhouse, to fire and fire and fire. So he acted disproportionately.

So that's a critically important thing that the defense has to establish, that, in that moment, he was firing until a threat was concluded. And then the last point, Ana, the defense has to show that he acted, Mr. Rittenhouse is -- their client, the defendant, reasonably under all of the circumstances.

And if they do that and establish that he wasn't the provocateur of this, right, he was not the initial aggressor, the provocation rule should not apply, then certainly that's where the heart of their case lies with the jury.

CABRERA: Joey Jackson and Laura Coates, it's great to have both of you.

Thank you so much for your expertise and for being here for us.

JACKSON: Sure.

CABRERA: We will take you all back to the courtroom just as soon as they return from their lunch break.

But we have much more breaking news. And you see there Steve Bannon, Trump ally, surrendering to authorities after his indictment on two counts of contempt of Congress. He is set to make his first court appearance moments from now.

Also ahead, President Biden's first big victory lap. He is set to host lawmakers from both sides of the aisle at the White House this afternoon, as well as business leaders, union representatives. He will be finally signing that $1.2 trillion bipartisan infrastructure bill.

We're live in the CNN NEWSROOM. Stay right here.

(COMMERCIAL BREAK)

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CABRERA: Welcome back.

Closing arguments under way in the Kyle Rittenhouse trial. And, right now, they continue their short lunch break. We will go back to court just as soon as closing arguments resume.

Our other major story right now, minutes from now, former Trump adviser Steve Bannon will appear in federal court after being indicted on two counts of contempt of Congress. Here he was this morning as he surrendered to the FBI in Washington. This was all set in motion when he refused to cooperate with the House committee investigating the Capitol attack.

Let's go right to CNN Whitney Wild in Washington for us.

Whitney, this is a big deal, whenever a former presidential adviser has to turn himself in to authorities and is dragged in front of a judge, Bannon spoke briefly this morning. And he was defiant.

WHITNEY WILD, CNN LAW ENFORCEMENT CORRESPONDENT: Yes, which is not much of a surprise, because, this entire time, he's taken this approach that this is -- that he's not going to cooperate.

And his attorney has sent a letter to the House select committee saying that he's not going to cooperate, at the direction of former President Trump, who is saying that his conversations and any of these documents that are related to Steve Bannon's role in the rally leading up to the riot on January 6 would be privileged.

So Bannon is taking this approach that this whole thing is just a sham. Here's what he said outside of FBI Washington field office, where he turned himself in today.

(BEGIN VIDEO CLIP)

STEVE BANNON, FORMER WHITE HOUSE CHIEF STRATEGIST: We're taking down the Biden regime. I want you guys to stay focused, stayed on message. Remember, signal, not noise. This is all noise. That is signal.

(END VIDEO CLIP)

WILD: Well, this is the real deal now, because the House select committee moving forward criminal contempt charge, the Department of Justice bringing that to the grand jury.

Steve Bannon was indicted Friday. And the point here is that the subpoena power the House Select Committee has tried to impress upon these witnesses as being very real and very serious is now getting assist here today, because this is more proof that that subpoena power could bring people to a criminal contempt charge if they continue to defy it.

[13:25:13]

That comes into greater play here when we look at this list of witnesses who continue to defy the subpoena, most notably, Mark Meadows. So the questions now are, what's going to happen with Bannon today? He will he will go into court, where he will be arraigned.

Our expectation is, he's probably going to plead not guilty to these charges. We may see him possibly get a bail, probably unlikely. Very likely he will be let off on his recognizance. So that is the state of play here at the courthouse, the first of a long court battle here in Washington, D.C., many, many court appearances left.

But, most importantly, Ana, this is a warning for any of these other witnesses who continue to defy the subpoena.

CABRERA: Right, including former Trump White House Chief of Staff Mark Meadows.

We heard over the weekend from Representative Adam Schiff that they be could move quickly on the Mark Meadows situation and holding him in contempt as well, because he skipped out on his deposition. And over the weekend, we got more details about Meadows' role in Trump's election scheme involving a second coup memo.

Tell us about that.

WILD: Well, that's right.

So, what we have seen from the e-mails that have been publicly released is, Meadows has often been someone who's facilitating these communications between the White House and the Department of Justice, the White House and other officials in this Trump circle.

And what we learned over the weekend is that one of the most notable and visible lawyers on behalf of the Trump campaign, Jenna Ellis, had basically written this memo that outlined steps that Pence could possibly take to overturn the election. And without getting into the details of all of the constitutional maneuvering here, the gist of it was, if they could get Pence to somehow try to decertify electors at the states, the idea would be to send these members of Congress home to discount six states' electors.

And then that would leave neither Biden nor former President Trump with the majority of electoral votes, which would then lead them to try to use the state legislatures to effectively finish up this vote. So, it's a complicated legal strategy. Obviously, it didn't happen.

But the point here is that there were more and more options that they were trying to utilize to try to overturn the election, and Mark Meadows very much trying to facilitate that, Ana.

CABRERA: Right, how this was all orchestrated at the highest levels.

Thank you so much, Whitney Wild.

Back with us now is CNN senior legal analyst Laura Coates.

And, Laura, let's start with Steve Bannon. His comments that we just heard were taking down the Biden regime, he said, this morning. For him, this is about framing it as a political hit job, becoming a martyr for Trump's supporters. Will any of that matter in the courtroom?

COATES: Well, for him, it's a publicity stunt, plain and simple.

But in the courtroom, the arguments that will actually be persuasive that he had some justifiable reason for why he does not think that he should have to comply with a subpoena. And a political vendetta is not a justifiable reason when you're challenging the authority of a co- equal branch of government.

And we're talking about a congressional subpoena here that you can't just thumb your nose at. I know, the last several years, it's been more of a game to do so. But you're not supposed to be able to do so. And the DOJ's indictment at the federal level of Steve Bannon really buttresses the notion that the congressional subpoenas mean something. And so, if Steve Bannon, who, remind you, was not a part of the

administration since at least 2017, wants to make a colorable argument or claim as to a valid reason for why he can't answer specific questions, he can do that, but a bald assertion that he wants to bring down a regime based on conduct that occurred when Donald Trump was still the president of the United States is nonsense.

CABRERA: So the judge expected to preside over this case was appointed by Trump and once fought to block congressional subpoenas targeting Bush administration officials.

So if you are Bannon's legal team, does that make you optimistic?

COATES: Well, the basis for Bannon's decision to say that he cannot be responsive is on executive privilege.

Now, he has a very weak argument for that, unlike, say, a Mark Meadows, where you think about executive privilege as about trying to get that frank, candid conversation with members of your Cabinet or your inner circle, or, in this case, the inner Oval. And so you have a stronger argument to say that you want to promote that because the privilege protects the institution of the presidency, not just the incumbent.

And so President Biden has already said that on a case-by-case basis, they will analyze whether to assert it or whether to reject the previous assertion by the predecessor, Donald Trump. Mark Meadows has a stronger, although not a successful claim.

But Steve Bannon, not having been a part of the administration, having already waived whatever privilege he thinks he has by publicly announcing things through mediums like his own podcast, undermines legitimately any argument he could make.

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