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Trump Asks Supreme Court to Block Release of Documents; Trial Outcome Reached in Kim Potter Case; Omicron Less Severe Than Feared?. Aired 2-2:30p ET

Aired December 23, 2021 - 14:00   ET

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

[14:00:03]

HILARY HAWKINS, DARTMOUTH-HITCHCOCK MEDICAL CENTER: Thank you, and thank you for helping spread our message.

ANA CABRERA, CNN HOST: As I sign off today, I want to wish you and your families a very healthy and joyous end to 2021. May your holidays be blessed and full of love and light.

I will see you in the new year.

Until then, thank you so much for being with us. And merry Christmas to all who celebrate.

The news continues right now with Poppy Harlow.

ANNOUNCER: This is CNN breaking news.

POPPY HARLOW, CNN HOST: Hello everyone. So glad you're with me. I'm Poppy Harlow, in today for Alisyn and Victor.

And we do begin with significant breaking news coming this hour. A trial outcome has been reached in the trial of Kimberly Potter. The former Brooklyn Center Minnesota police officer is on trial for killing 20-year-old Daunte Wright during a traffic stop in April. She says she mistook her handgun for her Taser.

We do expect the court will read that decision live in just about 30 minutes. Jurors have been deliberating now for four days.

Our Adrienne Broaddus joins us from Minneapolis. She has been covering the entirety of this trial.

Adrienne, I think the key question we all have is, what do they mean a trial outcome? They're not seeing verdict.

ADRIENNE BROADDUS, CNN CORRESPONDENT: That's the release from the Hennepin County court here. And that is the big question. What is the meaning behind trial outcome?

A lot of people could suspect what it means. But, here, we're not going to do that. We're going to stick with what they told us, that they will read that trial outcome on the record between 1:30 Central Time and 2:00 p.m., so, as you mentioned Poppy, within the next 30 minutes or so, this after this 12-panel jury deliberated more than 25 hours.

Earlier in the week, there was a big question from members of the jury. They wanted guidance. They asked the court what steps they should take and how long should they continue to deliberate if they could not reach a consensus, this after hearing from 33 witnesses over the course of eight days.

We heard from the first witness called to the stand, was Katie Bryant. That's the mother of Daunte Wright. She told us about that call she received from her son the day he was pulled over back in April. And we also heard from Kimberly Potter, the former Brooklyn Center police officer, testifying in her own defense, at moments weeping on the stand.

And under cross-examination she broke, saying she was sorry and she didn't intend to hurt anybody. So what has this jury found? Potter is facing first- and second-degree manslaughter charges. When she testified last Friday, she also said, had she been working alone on patrol that day, she never would have initiated the stop.

Remember, back in April, she was working as a field training officer. And the officer she was training or mentoring was Officer Luckey. He was the second person to testify in this case. Potter testified that Luckey saw some suspicious behavior, actually signaling to what Luckey testified days earlier, saying that he noticed Daunte Wright was hesitant when he went to turn at the stop sign.

Also, he said something like this captured his attention. It's a car freshener. It's in the shape of a tree. And here in the state of Minnesota, it's illegal to have this or anything else, quite frankly, hanging from your rearview mirror. You can't have anything obstruct the view.

And that's what Potter talked about by saying she never would have initiated that stop because she considered that a minor infraction. Also, once they ran the license plate, they realized the tags were expired. And Potter testified last Friday, saying law enforcement officers had been advised to excuse those types of violations because of COVID.

People were not able to get to the Department of Motor Vehicles here in Minnesota to renew their tags because for a while everything was shut down. So, once again, that breaking news for those of you just joining us, a trial outcome has been reached. It will be read in the next 30 minutes.

And the suspense hopefully will end today for the Wright family, who has waited, as well as the family of former police officer Kim Potter -- Poppy.

HARLOW: That's right. Adrienne, thank you so much for the reporting. And do stay with us.

Let me bring in CNN legal analyst Elliot Williams, who is a former federal prosecutor.

Look, Elliot, I don't know. We don't know, is this going to be a verdict? We will see very soon.

But I'd like you to detail for our viewers the charges here, because, first, we saw the Minnesota A.G. bring a second-degree manslaughter charge. That came just days after Daunte Wright was killed by then- Officer Potter.

It was then in September, after outcry from the family, from community members, that his office then brought a first-degree manslaughter charge as well.

[14:05:07]

Explain the statutes to our viewers, what the bar here is that needs to be met for a guilty verdict on either.

ELLIOT WILLIAMS, CNN LEGAL ANALYST: Right.

Look, more than anything else. Poppy, I really do believe that if there is to be a conviction here, it'll be for the second-degree manslaughter charge. Look, what second-degree manslaughter is, is negligence, behaving in a manner that was unreasonable and consciously created a risk of death to the individual.

So, by being negligent, by -- even though it was an accident, and the prosecutors acknowledge that, by reaching for the wrong weapon, she was behaving in such an unreasonable manner that she's held criminally responsible for it. That, I think, is a far more straightforward charge in a trial that's far from straightforward, right?

So then, first-degree manslaughter is a little bit higher of a burden, because what they're saying is that, through the reckless use of her firearm, which is itself a misdemeanor -- she commits a misdemeanor by recklessly using her firearm -- and then created a risk of death in causing -- in killing Daunte Wright.

It's just a higher burden, and just a tougher charge to get a conviction. No outcome here -- to be perfectly blunt, no outcome here would shock me, because this at the end of the day deals with how prosecutors and jurors think about accidents, and it was an accident. The prosecutors did not charge an intentional homicide here.

And this is really going to come down to what -- how much grace the jurors are going to give her for that conduct.

HARLOW: That's right.

And we saw the prosecution point a lot during the trial, Elliot, to the training, the year -- 26 years on the force...

WILLIAMS: Yes.

HARLOW: ... that many years in training in terms of how to use her gun, I think 19 years of training on the Taser, and also specific training, the prosecution said, on weapons confusion.

How critical is that when you're trying to meet a manslaughter either in the first- or second-degree bar?

WILLIAMS: It's very critical.

So this gets back to this idea in the law of negligence. And when you're -- in order to find someone negligent, you have to find that they acted in a manner unreasonable based on sort of the reasonable person standards or a reasonable police officer. Someone else with her age and training and experience, how would or should they have acted under the same circumstances?

HARLOW: Right.

WILLIAMS: It applies in lots of different crimes.

So, here, she was trained, as every other officer was. And the question will come down to, do we expect that someone with that degree of training ought to know where their firearm and which hip it's kept on, even in the heat of the moment?

Now, the prosecutors' argument is, look, a reasonable officer should have known that the action she would have taken there would have ended in a death, an unintentional death. Now, the defense there as well, I am a reasonable officer, and mistakes happen. That's what this is going to come down to.

HARLOW: Right.

Adrienne, as we wait for this verdict that's now going to come in less than half-an-hour, the outcome of the trial, can you take us into Minnesota? I mean, take us into the community that you have been covering so much. There were protests for days following Daunte Wright's killing. There has been a lot of anticipation for what the outcome may be here today.

Again, outcry when it was just the second-degree manslaughter charge at first. We saw Daunte Wright's mother take the stand in tears in this trial. What are people in the community saying as we await?

BROADDUS: To answer that question, we have to go back.

So let's go back to April 11. It was a Sunday. That is the day the former Brooklyn Center police officer was on duty with Officer Luckey. This was right in the middle of the Derek Chauvin trial.

HARLOW: Right.

BROADDUS: Chauvin, as many of you might remember, was convicted in the same courtroom after a jury deliberated for more than 10 hours, but the same courtroom where the trial of Kimberly Potter has played out.

Back then, in April, people were on edge. They wanted to know what was going to happen in the case of Derek Chauvin. And when this incident with Daunte Wright happened, the prosecution was preparing to end -- or was preparing to rest its case. On the following day, after Kimberly Potter shot and killed Daunte Wright, we heard from the brother of George Floyd that Monday, and we also heard from the prosecution's use of force expert in that case. So people were in shock. They couldn't believe an officer has shot and killed an unarmed black man right in the middle of the Floyd -- or -- excuse me -- the Chauvin trial.

So, protests erupted. I remember that Sunday night in Brooklyn Center outside of the police department, which is about 15 minutes from the courthouse here in Hennepin County, people gathered. Some were already here monitoring what would happen with the Chauvin trial.

[14:10:06]

And there were protests, but there were different types of protests. There were air fresheners like these hanging on the fence that blocked the protesters from getting to the police department. This time around, we haven't seen groups to that magnitude.

But there's still some tension. And some folks here in Minneapolis still haven't recovered from that -- Poppy.

HARLOW: Thank you very much, Adrienne Broaddus, for your reporting.

Stand by. Obviously, we will get to the trial outcome as soon as it is read in the courtroom.

Elliot Williams, please stick around as well. A lot to get to.

Now to today's significant developments also on the COVID pandemic. The Omicron variant continuing to drive up new and breakthrough infections by the tens of thousands, but, fortunately, not driving up significantly hospitalizations so far. The United States is averaging more than 164,000 new cases a day, a double-digit increase from just last week.

But you see the number of COVID patients in hospitals is not surging to that extent. Several studies are finding the highly contagious variant may be less likely to cause severe disease when you compare it to the Delta variant in the wake of the Omicron spread.

Some breaking news coming from the mayor of New York City right here. Mayor Bill de Blasio says the New Year's Eve Times Square bash is still on, but in a scaled-back fashion.

Let's go to Athena Jones, who has more.

So what does that mean? Because we all know, whether you live here in New York or you see it on television, it is people packed into Times Square. Are they not going to allow that this year?

ATHENA JONES, CNN NATIONAL CORRESPONDENT: Hi, Poppy.

Well, no, not so packed this year. This is going to be scaled down has been the big question. We knew the mayor was going to give an answer before Christmas. Now we have that answer. The celebration will go on with a lot fewer people and some additional safety measures.

So, for instance, the crowds were already going to have to provide proof they're fully vaccinated and show a photo I.D. They're also going to have to wear masks, and there will be fewer viewers in the viewing area.

So, according to a statement just put out from the mayor's office, they usually host this event, usually has about just under 60,000 people, 58,000 people approximately each year. This year, that Times Square celebration will have just about 15,000 people. The goal here, of course, is to allow space for social distancing.

But bottom line here is the celebration will go on. It'll just be a bit smaller this year, this as we're hearing new evidence that Omicron, the variant, may be less severe than the Delta variant.

(BEGIN VIDEOTAPE)

JONES (voice-over): With the highly contagious Omicron variant confirmed in all 50 states, three early studies now adding to the evidence it may be less likely to cause severe disease.

It's potentially good news, but experts warn it's still too early to say for sure.

DR. ANTHONY FAUCI, CHIEF MEDICAL ADVISER TO PRESIDENT BIDEN: If you're talking about, would it be preferable to have Omicron be totally pervasive and be relatively low degree of severity, yes, obviously, that would be preferable, but it's dangerous business to be able to rely on what you perceive as a lower degree of severity.

JONES: Doctors fear, even if Omicron is milder than Delta, the huge spike in case numbers, particularly among the unvaccinated, could still strain hospitals in some places, like Cleveland, Ohio.

DR. HASSAN KHOULI, CLEVELAND CLINIC: We are overwhelmed. Our ICUs, our hospitals are overwhelmed.

JONES: But the hospital picture nationwide appears more promising. And doctors are applauding the FDA's decision today granting emergency use authorization to a second antiviral pill, this one from Merck, that people can take at home, adding another COVID-fighting weapon to the nation's armory.

DR. NGOZI EZIKE, DIRECTOR, ILLINOIS DEPARTMENT OF PUBLIC HEALTH: Being able to have something that is oral is so easy, easier than giving an I.V. Infusion, that you can get before you get to the hospital, that will help decompress the hospitals and save lives.

JONES: So far, while new daily cases average nearly 165,000, 36 percent higher than a week ago and nearly as high as the mid-September peak of the Delta surge, hospitalizations and deaths remain well below their peaks during Delta

Washington, D.C., and New York state each setting single-day records for new COVID cases this week, but New York's governor says the hospitalization rate is only two-thirds what it was this time last year.

GOV. KATHY HOCHUL (D-NY): We're not panicking. We have the resources we need.

JONES: This as coronavirus outbreaks continue on land and at sea, the Royal Caribbean ship Odyssey of the Seas denied entry to ports in Curacao and Aruba after 55 fully vaccinated crew members and passengers contracted COVID, according to "The Miami Herald."

It's the second the cruise line ships to report an outbreak in less than a week. And with the TSA reporting holiday air travel on Wednesday surpassed pre-pandemic levels, schools and universities are increasingly preparing for a post-holiday case surge.

(END VIDEOTAPE)

[14:15:08]

JONES: At least 85 school districts are offering a hybrid learning option or fully remote learning options for K-12 students.

And a growing number of colleges and universities are making changes to their spring semesters, starting late, going online temporarily or mandating booster shots. And, meanwhile, we're now learning just how costly the Delta surge has been for the U.S. in both blood and treasure.

The Kaiser Family Foundation estimating the surge resulted in 690,000 preventable deaths and cost the U.S. nearly $14 billion -- Poppy.

HARLOW: Wow, what a number in terms of preventable deaths.

Athena, thank you for that reporting.

Let me bring in Dr. Amesh Adalja, a senior scholar at the Johns Hopkins University Center for Health Security.

Doctor, good to have you.

So we have these studies from the U.K., from South Africa that are encouraging, in that they show that Omicron may pose a lower risk for hospitalizations and severe illnesses compared to Delta.

Does that necessarily mean, though, that it will be the same here in the United States, because, with South Africa, for example, you're dealing with more people who were infected with a different variant of COVID? So maybe they had more immunity.

DR. AMESH ADALJA, INFECTIOUS DISEASES SOCIETY OF AMERICA: That's definitely the case that you can't always extrapolate something happening in one country, where the average age is younger, where they have got different immunological protection, because, remember, they got hit with a variant called the Beta variant, which is more related to Omicron than other variants that the U.S. had, like the Alpha variant, for example, or Delta. So that may play a role. I do think that the data coming from the

United Kingdom and Denmark is more reassuring. That's a little bit closer to the U.S. in terms of demographic makeup. But it doesn't so much matter, if this is so much more transmissible and you have got swathes of unvaccinated high-risk people.

There's about 60 million eligible Americans that are not vaccinated. Some of them have high-risk conditions. And we know that Omicron has killed. It's already killed in the United States. It's killed in the U.K. and Israel.

So I don't know that we can completely rely on that.

HARLOW: Right.

ADALJA: Maybe, on a pound-per-pound basis, it may be less virulent, but it's not enough to hang your hat on.

HARLOW: Let's take a listen to what President Biden told ABC News in that interview last night, making the case that no one saw this coming. Here he was.

(BEGIN VIDEO CLIP)

JOE BIDEN, PRESIDENT OF THE UNITED STATES: No, I don't think it's a failure. I think it's a -- you could argue that we should have known a year ago six months ago, two months ago, a month ago.

QUESTION: Empty shelves and no test kits in some places three days before Christmas, when it's so important, is that good enough?

BIDEN: No, nothing has been good enough.

QUESTION: The vice president said in recent days that you didn't see Delta coming, you didn't see Omicron coming. How did you get it wrong?

(LAUGHTER)

BIDEN: How did we get it wrong? Nobody saw it coming. Nobody in the whole world. Who saw it coming?

(END VIDEO CLIP)

HARLOW: I mean, obviously, we can't change the past. But what it can do is inform the future.

So, given what has happened, what is the number one thing the administration has to be doing right now, for, God forbid, if there is another variant that's highly contagious like Omicron?

ADALJA: The administration needs to be proactive. They have been really reactive. They were reactive in the Trump administration. They're still reactive in the Biden administration.

And testing has to be a cornerstone of how we move forward. And it was something that we predicted. All of us had been saying that more contagious variants are going to come in, and shelves have been bare back in October for these home tests. So it's not something that's new.

This is a chronic problem that's plagued us from the very beginning of the pandemic. I always say that testing is the original sin of this pandemic, and it continues to be made. So what we need to do is make sure hospitals do not go into crisis. And I think that part is going to be really critical.

But we have to have the tools in place to be able to keep cases from turning into hospitalizations, and that's tests. They need to be ubiquitous. They need to be cheap out of pocket. And they need to be easily accessible.

HARLOW: Yes.

ADALJA: And then we need the antivirals to be everywhere.

HARLOW: To your point on testing, I thought this was so interesting what "New York Times" correspondent Sheryl Gay Stolberg said this week on "The Daily."

She said, look, you have got the situation in many European nations where those governments bought tests directly a long time ago from the companies that make the tests and therefore they had more of them, they created a ready market and you were talking about tests costing $1 to $2 for people, whereas in the United States about two test costs roughly $25.

And many people here in New York City and other places cannot find them. Is there a lesson there as well in terms of being proactive?

ADALJA: Definitely.

We had been clamoring for testing back in the Trump administration, that this needed to be something that government invested in. Vaccines were great, and they have done tremendously well at preventing serious illness, hospitalization and death. But tests also play a major role.

And because of the way this was handled, the way tests were kind of undervalued and went through kind of an onerous FDA regulatory pathway, even after there was major delays early on, when we were using a botched CDC test, we have never been able to catch up.

[14:20:08]

And I do think this is something where the government needed to have thought about these contracts proactively, put them in place, because having a $25 out-of-pocket expense for two tests is not -- is out of the reach of many people.

HARLOW: Yes.

ADALJA: And then filling out your insurance forms after the fact, that's not a solution. We need this to be something you would get the vending machine or in your mailbox. HARLOW: Yes.

And it will hopefully, because of the half-billion tests they're buying, get to your mailbox, but it can't come soon enough.

Dr. Adalja, thanks very much.

ADALJA: Thanks.

HARLOW: We are keeping a very close eye on the courthouse, federal court in Minneapolis, where the trial outcome is set to be read in about 10 minutes' time in the case of former Brooklyn Center police officer Kim Potter. We will bring you that, of course, live as soon as it happens.

Also, this afternoon, former President Donald Trump takes his fight for executive privilege all the way to the Supreme Court, his latest legal argument. And will the court even take the case?

Next.

(COMMERCIAL BREAK)

[14:25:20]

HARLOW: All right, we are monitoring a federal courtroom in Minnesota where a trial outcome has been reached for the case against former Brooklyn Center police officer Kim Potter.

Again, she's the former Brooklyn Center officer charged with two counts of manslaughter in the shooting death of Daunte Wright in April. As soon as the judge gavels in, we will bring that all to live right here.

Meantime, as we wait for that, in the investigation into the January 6 insurrection, former President Donald Trump just filed an appeal up to the Supreme Court to try to get the High Court to block the committee from accessing his White House records, which are currently held by the National Archives.

While the justices consider whether they're even going to take up the case, Trump also attacked and asked what they put -- asked that they put on hold a lower court decision allowing the documents to be released.

Our CNN legal analyst Joan Biskupic.

Joan, to be clear, as you have said earlier, these are not the former president's records. These are the public's records. But what I am so fascinated by here is the fact that this executive privilege question is actually a question that the Supreme Court has never fully resolved.

So does that indicate to you that they will take up this case?

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: Well, first of all, Poppy, it's great to see you.

And you're right on both counts here. First of all, last year, there was a dispute that went before the Supreme Court that involved former President Donald Trump's private papers, tax and financial records. And the Trump lawyers are sort of relying on that. But this is a whole different situation, because these are documents that the National Archives holds, and that they're, as you say, the public's records.

And the other thing about executive privilege I should mention is that as a lower court judge said in this case, it's for the benefit of the republic, not for the benefit of an individual in the White House, just as a threshold matter.

But in terms of your question about whether the Supreme Court has ever addressed this, it has never looked at a time when a former president and a sitting president would be in conflict on a claim of executive privilege. As you probably know, Poppy, the precedent in this area goes back to Richard Nixon, who was trying to hold onto documents and materials, tapes for Watergate.

HARLOW: Right.

BISKUPIC: And he lost. He lost.

But the Supreme Court at the time said that -- in his second case that a former president does retain some right to executive privilege. But in that case, we didn't have the situation we have today, where a sitting president is saying, no, this privilege should be waived because these are extraordinary circumstances, where this committee of Congress is investigating what happened on January 6, which is so important for the country.

HARLOW: It is such a fascinating case and equally fascinating to see if the court grants cert or not and takes it up. We will be watching.

Joan, you will be all over it. Thank you very much.

BISKUPIC: Sure. Thank you.

HARLOW: We are following breaking news out of Minneapolis about to come down.

Let me take you inside the courtroom. This is the Hennepin County courthouse. This is federal court. This is the case of former Brooklyn Center Minnesota police officer Kim Potter. We are about to learn what we are told from the court is a trial outcome.

They have not said the word verdict, but they have said trial outcome. There you see the former officer Kim Potter awaiting this. It'll all be read live. So you will see it all right here. You may have been following this, watching days and days of testimony.

Kim Potter herself took the stand. This is all over the killing of 20- year-old Daunte Wright, a father of a 2-year-old who was killed in April. There, we have the judge, who is about to gavel in, I think. As we wait for this -- that's Judge Regina Chu. Let's go and monitor this and bring in my colleague Adrienne Broaddus, who's been covering this case and this trial from the beginning.

Adrienne, forgive me if I have to interrupt you, because we want to bring this all to the viewer live, but remind our viewers what we're waiting for here.

BROADDUS: We're waiting to find out the future of the former Brooklyn Center police officer Kimberly Potter.

Just moments ago, as you saw here on live TV, Judge Chu asked for the jury to be brought in. Right now, defense attorney Earl Gray just put his arm around the back of Kimberly Potter.