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Jury Deliberates in Daunte Wright Trial; Interview With Former U.S. Assistant Secretary for Health and Human Services Admiral Brett Giroir; Omicron Now Dominant Variant in U.S.; President Biden to Deliver Address on COVID Fight. Aired 1-1:30p ET

Aired December 21, 2021 - 13:00   ET

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

[13:00:32]

ANA CABRERA, CNN HOST: Hello, and thanks for being here. I'm Ana Cabrera in New York.

Next hour, we will hear one of the most important speeches of President Biden's first year in office. It follows a stark CDC warning that daily COVID infections could exceed previous peaks. Omicron is now officially the dominant variant here in the U.S., accounting for more than 73 percent of new infections.

And case rates in the U.S. are the highest they have been in three months, though experts say that doesn't necessarily mean hospitalizations and deaths will be as high as in previous surges. Still, the president will lay out a sweeping plan to beat back this tide, priority one, flood the zone with free COVID tests.

(BEGIN VIDEO CLIP)

DR. ANTHONY FAUCI, CHIEF MEDICAL ADVISER TO PRESIDENT BIDEN: We have had in the past not as many tests as everyone would have wanted or needed, but part of the president's program, which he will be speaking about this afternoon, is to dramatically increase the availability of testing, with putting up about 20,000 testing sites, with getting a half-a-billion tests very quickly, literally within the next few days, and then have a situation where you can get anywhere from 200 million to a half-a-billion tests per month.

(END VIDEO CLIP)

CABRERA: But a key question, with the travel rush in full gear already, is this push too late?

The TSA has screened more than 10 million people at U.S. airports in the last five days. And the agency estimates 30 million holiday travelers will get on a plane by January 3. President Biden will have a message specifically for those people. He is expected to reassure Americans who are vaccinated and boosted, you should keep your holiday plans, but his outlook for unvaccinated folks expected to be much different.

CNN senior White House correspondent Phil Mattingly is awaiting the president's remarks for us. What more can you tell us, Phil, about today's critical address?

PHIL MATTINGLY, CNN SENIOR WHITE HOUSE CORRESPONDENT: Ana, the way you laid it out is kind of perfect in terms of underscoring a very complex balancing act the president has today, providing reassurance to those who have gotten vaccinated and boosted, while also delivering a very dire warning to the nearly 40 million Americans who have not to this point.

And it comes as I think anxiety is sweeping across the country, much like the Omicron variant is. The speed has been stunning to which that variant has become the dominant variant in the country. And the administration has urgently tried to figure out how to address that.

Now, you mentioned boosters and vaccinations, certainly the primary component of defense that the administration sees. They will be standing up more vaccination sites, trying to ensure that there's better opportunities to get shots in arms.

But you talked about, I think, one of the most critical components of what the president is going to lay out, and that is on the testing front. We have seen the lines across the country for people trying to get tests, the difficulty in getting rapid tests. The administration is going all in behind trying to give as many pathways as possible to get at-home rapid tests.

Starting next month, up to 500 million tests will be available to be ordered online for free. They will be delivered via mail. There's still a lot of details that need to be worked out on that front. But that is something the administration is urgently trying to get to.

The other thing, hospital support, more than 1,000 military officials being mobilized to deploy. They know that there could be a mass surge when it comes to hospitals, and they're trying to get out in front of that -- Ana.

CABRERA: OK, Phil Mattingly, we know we will all be listening carefully. You will be bringing us any new developments you learn between now and the president's address, then, of course, afterwards as well.

Thank you.

What a difference a day makes. Yesterday, as we went to air, you will recall the latest CDC breakdown showed the Delta variant accounted for the vast majority of new cases here in the U.S. Today, the CDC's updated numbers show a complete flip. Omicron is now making up almost three out of four new infections nationwide, the entire trajectory of the pandemic changing overnight for Americans.

Let's bring in CNN senior medical correspondent Elizabeth Cohen.

Elizabeth, experts knew Omicron would eventually be dominant. Did they know it would happen so fast? Break it down for us.

ELIZABETH COHEN, CNN SENIOR MEDICAL CORRESPONDENT: I'm not sure that they knew that it would happen quite this fast. This has really been incredible.

I mean, we remember when the so-called U.K. variant -- that's what it was called at the time -- when that took over, that was fast. When Delta took over, that was fast. It wasn't as fast as this.

Let's take a look at what happened, has happened just in the past two weeks. If you look at the week ending December 4, 0.7 percent of new cases of Omicron -- I'm sorry -- in the U.S. were of the Omicron variant. December 11, that went up to 12.6. By December 18, as you said, nearly three out of four new cases were Omicron.

[13:05:15]

That is a jump from less than one percent to 73 percent in less than two weeks. And, in some places, it's even more than 73 percent. The CDC says, in these pockets, in the Northwest and in the Southeast, in these 12 states, it's actually more than 95 percent. More than 95 percent of new cases are Omicron -- Ana.

CABRERA: And we have also learned of the first death now from the Omicron buried here in the U.S. Tell us about that.

COHEN: Right. So this is a man from Houston in his 50s. He was unvaccinated, which is not surprising. We know the unvaccinated get much more sick, are much more likely to die from Omicron. And he also had underlying health conditions.

It's the first known death from Omicron. It is very possible there have been other deaths. It's just they don't always do genetic sequencing every time someone dies of COVID -- Ana.

CABRERA: And I just want to underscore he was unvaccinated. He had had a previous infection, we were told, a previous COVID infection.

COHEN: Right.

CABRERA: He still got Omicron. And it led to this severity, in which he died.

Elizabeth Cohen, thank you for all that information.

COHEN: Thanks.

CABRERA: For more on all of this, we are joined now by Admiral Brett Giroir. He's the former assistant secretary of health in the Department of Health and Human Services. He also led the Trump administration's COVID testing efforts.

Admiral, thank you so much for joining us.

What do you want to hear from President Biden today?

ADM. BRETT GIROIR, FORMER U.S. ASSISTANT SECRETARY FOR HEALTH AND HUMAN SERVICES: Well, I hope we hear a lot of the things he said now, reinforcing the hospital systems. Those are pretty obvious things and things we did under the Trump administration. Pushing vaccines is really the number one issue. We now know, with Omicron, that the Omicron infection really can avoid vaccine immunity, as well as preexisting natural immunity. So, your protection is only about 20 percent against Omicron.

That's why getting vaccinated even if you have had the infection before and getting boosted even if you have had two doses are so critical. And, obviously, I'm positive about the testing. It depends how quickly those tests are available. We're a little bit behind the eight ball because of the lull in testing and orders throughout the summer and fall. But it's a good step in the right direction.

CABRERA: And just reinforcing that testing issue, 500 million tests expected to be available for people to go online to say, I want one, and then they would be mailed to those homes.

Do you think that will be a difference maker?

GIROIR: I'm concerned because it's not enough, right? That 500 million may be over two or three months. So it's still not enough to blanket the population.

What I want to be sure of and what I would advise the president is still to make sure that the vulnerable get priority. That would be the elderly. That would be people who live in assisted living. You can go on Medicare rolls and know who has all the preexisting conditions and send it to them.

So unless we have a billion or two billion a month, I think we're still going to have to be selective to make sure that we keep people who can die from the disease from dying from the disease. And, remember, that test is very important, because you can get monoclonal antibodies. Hopefully, you will get oral antivirals.

So I think targeting is still going to be important. We just have to see what the numbers shake out to be.

CABRERA: I think a lot of people are scratching their heads, saying, how can testing still be a problem? How can we still not have enough tests? How can they still not be accessible and easy for people to get? We're almost two years into the pandemic.

GIROIR: Right.

CABRERA: And, of course, you were testing czar for the Trump administration. So you're a great voice to be able to answer maybe that question.

But I just want to remind our viewers, this was a problem from the very beginning, right? Increased testing wasn't a focus.

GIROIR: It was a problem from the beginning. But, remember, from September to December in 2020, we sent 180 million of these rapid tests out.

So that was a year ago that we were able to do this. Look...

(CROSSTALK)

CABRERA: But that's enough for like half of America to have one test. They were never sent to American homes.

We all remember those long testing lines, the drive-through testing places. President Trump was so vocally against more testing.

(CROSSTALK)

GIROIR: No, no, no. Let's not -- let's talk about...

CABRERA: We just had this report came out on Friday that was from the House that said, basically, that there was guidance and pressure to change testing guidance, so that asymptomatic people didn't get tested to kind of reduce the number of cases, positives that would be out there.

So I just don't want a whitewashing of the history on all of that, but that was a problem.

(CROSSTALK)

GIROIR: Not only is the report biased, but your reporting of the report is completely incorrect about what the report says.

But let's get back to the testing issue. Between January and August, there were really no government orders. The states didn't have orders and production lines closed down.

[13:10:06]

We expected to have a billion tests per month by May or June. That's not just us. That's academic researchers. And we're only to the level right now that we should have been in last February or March. So there was a lull. It was multifactorial, but there was no problem with technology. There was no problem with availability.

It's just the orders weren't there, the infrastructure wasn't there, and now we're behind. So, yes, that's the situation we're in. That's why I think we're going to have to be selective right now about who we test, because to test the entire country, and to do it multiply, of course, we need billions per month. And we don't have that right now.

CABRERA: And let's focus forward here, because I think that's what's important.

What specific things would really make a difference at this stage of the pandemic, do you think?

GIROIR: It's really vaccination.

And I really need to double down on that. And I want to emphasize, it's not just the unvaccinated, because, with Omicron, if you have had two vaccines, two of the mRNA vaccines, you're only about 20 percent protected from infection. Now, you're more protected against hospitalization.

But I don't want it just to turn into the unvaccinated, because it's very important for people who've had two vaccines to get their booster in order to raise their immunity. That is the single most important thing to do.

Testing is obviously going to help. I'm very hopeful that the oral antiviral from Merck and Ridgeback gets authorized soon, because it can cut hospitalization by 30 to 50 percent. We have to do all these factors. But the core answer is vaccinations. That has to be the foundation of our response.

And I am 100 percent in agreement with the president on that. But it's not just the unvaccinated. It's the incompletely vaccinated that we really need to worry about with Omicron.

CABRERA: Right. So everybody needs that third boost, or that third shot. The booster shot is what is considered right now.

I wonder what your advice is for people for the holidays, because I ask this question every day to our doctors, but the information has been changing day to day. As we just reported, overnight, it went from Delta being the dominant variant to Omicron now 73 percent of the most recent cases.

What's necessary and what's not in terms of precautions and mitigation measures people should be taken -- taking for the holidays?

GIROIR: Well, this is all very important individual family decisions and discuss with your health care providers.

But I do think it's very important to reiterate messages we have said all along. If you have a very vulnerable person in your family, even if they have been triply vaccinated, if you have an 85-year-old, we really do need to be careful, because we don't know all the related information.

I'm not canceling holiday plans. We do you have immunosuppressed people in our family. We're being careful about that. We're making sure that we don't expose them or risk them. But it's an individual decision. I missed Christmas last year. I'm going to enjoy having a small Christmas celebration, but exerting reasonable care, like I hope everyone would.

And, of course, all our family are completely vaccinated with boosts. And that gives me a much higher degree of confidence.

CABRERA: Admiral Brett Giroir, I really appreciate your time, and wishing you very merry Christmas and a happy new year as well. Thank you so much for joining us.

GIROIR: Thank you.

CABRERA: There's still plenty more to come this hour, jurors back at work trying to reach a verdict in the Kim Potter trial, the ex-cop who says she mistakenly fired her gun instead of a Taser. Key question here, was that fatal accident also a crime? We will talk

through the legal issues next.

And later: The House committee investigating the Capitol riot gets a big no from a lawmaker it wants to hear from. Now what?

And New Yorkers on edge in search of COVID tests. Why is it so difficult to get one right now?

(COMMERCIAL BREAK)

[13:18:10]

CABRERA: It is day two of jury deliberations in the manslaughter trial of former Minnesota police officer Kim Potter. She says she mistook her gun for her Taser when she shot and killed 20-year-old Daunte Wright during a traffic stop in April.

The prosecution and the defense laid out their closing arguments yesterday. Potter's attorney told jurors Daunte Wright caused his own death when he tried to drive away from the scene and that Potter was justified to use deadly force, even if that wasn't her intention. The prosecution argued the shooting was -- quote -- "a colossal screw-up" and that Potter was negligent and acted recklessly.

Joining us now, CNN legal analyst Areva Martin and criminal defense attorney Sara Azari.

Thank you both for being here,ladies.

Areva, the defense says Potter made a mistake, and a mistake is not a crime. What do you make of that argument?

AREVA MARTIN, CNN LEGAL ANALYST: Well, mistake is not a defense to the criminal charges that have been brought against Kim Potter.

The defense had three arguments, essentially, that we heard in the closing, one, this whole mistake notion, two, that she's remorseful and she's emotional, and, three, that Daunte Wright caused this himself.

And all of those arguments are fatally flawed, Ana. This notion that Daunte Wright caused his own death is ridiculous. It's an old racist trope. We see it used oftentimes when you have a white cop that kills an unarmed African-American person like Daunte Wright.

She had the opportunity to not even stop him. And you have to remember that this whole case started because he had an air freshener hanging in the back window of his car. She herself said she wouldn't have pulled him over, but the rookie cop wanted to make the stop. She was the experienced 26-year-old veteran in the situation. She didn't have to pull him over.

This whole notion too about her being remorseful, that's up a term we call jury nullification. Basically, it says all the facts of the case suggest that the person is guilty, but because they're sad or remorseful, that the jury should ignore the facts and find the person not guilty. Again, that's a ridiculous argument in this case.

[13:20:13]

And this notion that she had the right to use deadly force is undermined by her own testimony. She said herself on the stand that her conduct was unreasonable. She yelled, "Taser, Taser, Taser," obviously, knowing that this was not a situation where she should have pulled her weapon.

So I think the facts are there, I think the evidence is there to support a guilty verdict, at least with respect to the criminal negligence, if not the reckless first agreement. It just comes down to what this jury is going to do.

CABRERA: Sara, do you agree with Areva's assessment of how the evidence was presented and the interpretation perhaps by the jury?

SARA AZARI, CRIMINAL DEFENSE ATTORNEY: Well, I think the defense, Ana, going with a mistake is rather misleading. That is not the law.

And Areva is correct. It is not a defense. Not only that, but we have to remember that the crime of manslaughter itself is about a mistake. It's the accidental killing of another human being. So there is no mistake defense to a mistaken crime. And accidents can be crimes.

And in addition to the racist trope that Areva brought up, the facts aren't there, the idea that there was a use of force expert who said not only deadly force was unjustified, but even the use of a Taser was unreasonable, because there was a passenger, there were other officers around.

And so that -- and this is not an oopsie. I love that line. It's not an oopsie. Mistake is not a defense. I think the facts, obviously, and the law are on the side of the prosecution, Ana. But it really depends on whether this jury can not apply their heart to the facts, but apply the law to the facts.

And I'll say one more thing. I -- my only critique of the prosecution in closing was that I think they should have reminded the jury of that, that they -- she can be emotional, she can be remorseful, she can be agonized and traumatized, but those go to -- that's a sentencing issue. Those are not defenses to this crime. And they need to follow the law and not the heart.

CABRERA: OK, let's turn to the Ghislaine Maxwell trial, where jury deliberations are also under way now.

Maxwell is charged with six federal accounts for allegedly recruiting teenage girls into Jeffrey Epstein's sex trafficking ring. That's the allegation here.

Now, during the trial, four women testified that Epstein sexually abused them and that Maxwell aided and sometimes participated in that abuse. We learned a short time ago jurors sent a note asking for transcripts of testimonies from at least three of those four accusers. And, Sara, I'll come back to you to kick this one off. A key line from

the prosecution in all of this has been -- quote -- "Maxwell was crucial" to the whole scheme. Epstein could not have done this alone, while the defense has argued Maxwell herself was manipulated by Epstein, suggesting she too is a victim.

How clear-cut is this case?

AZARI: It's not clear-cut, Ana. And the defense is saying Maxwell is not Epstein. That's the headline of this case for the defense.

But let me say this. We are in the middle of, well in the thick of a MeToo era. And I, for one, going to court every day and knowing the reality of the situation, don't believe all women. But the fact of the matter is, this is a she said/she said/she said/she said case, and we're in a different era.

Ten years ago, this could have been a very defensible case. Today, I'm not so sure. And the idea for the defense, I think the strongest argument they have made is the financial motive, the idea that at least two of these accusers never brought up Maxwell every time they sat down with law enforcement for over decades.

And they suddenly -- they pulled Maxwell into the scenario when they lawyered up with their P.I. lawyers and sat with the FBI after they realized there's an Epstein victims fund, from which they have collected millions of dollars and could collect more if Maxwell is convicted.

That is really the strongest argument. But, again, we're in a different time. And you have these four accusers telling similar stories of sexual abuse by Epstein, the fact that Maxwell groomed them and brought them to Epstein and then looked the other way.

We have to remember, Ana, that there is an instruction that that's on the prosecution side which is about conscious avoidance, the idea that Maxwell may have known what's going on behind closed doors, may have very well been manipulated by Epstein, even if the jury believes that, but that she consciously turned a blind eye to those facts.

And so this is the case I think that is going to require -- it's not so clear-cut. It's going to require some deliberation. But we have the holidays coming up. So it'll be interesting to see if there's a verdict before Friday.

CABRERA: And, Areva, the defense has claimed Maxwell is being tried as a scapegoat for Epstein, as Sara mentioned.

Of course, Epstein died in prison in 2019. How do you think the prosecution has worked around this, the fact that someone so crucial to the case is no longer alive?

[13:25:00]

MARTIN: I think they have done the best job they can do, Ana. Clearly, there are going to be some people on the jury that may feel like this is a substitute for Epstein. But I think the evidence is overwhelming that Maxwell is guilty. Obviously, Epstein was guilty. And I think there's some other men involved in this case who I'd also like to see brought to trial because of their reprehensible conduct.

But I think the witness that -- the witnesses, the four witnesses that testified in this case, despite the financial motive that Sara talked about, have been quite compelling and persuasive in their arguments that this woman groomed them, that she participated in the sexual abuse of minors. Some of them were minors at the time. And she needs to be held accountable for that.

CABRERA: Ladies, thank you both so much.

AZARI: Thanks, Ana.

CABRERA: We will, of course, stay on top of any new developments on the deliberations.

AZARI: Merry Christmas to both...

(CROSSTALK)

AZARI: ... to you.

CABRERA: Merry Christmas as well. Thank you.

Republican Congressman Scott Perry turning down a request for an interview by the House committee looking into the Capitol riot. So, will investigators try a subpoena to force his testimony?

We will talk about that next.

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