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Jan 6th Committee Member: Barr Spoke with Us "More Than Once"; No DOJ Decision on Meadows Nearly 6 Weeks after Contempt Referral; Federal Trial Beings for Ex-Officers in George Floyd's Death; Supreme Court to Hear Landmark Affirmative Action Challenge on College Admissions; Passenger Accused of Exposing Himself, Wild Behavior on Flight from Dublin to NY. Aired 1:30-2p ET

Aired January 24, 2022 - 13:30   ET

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

[13:30:00]

ANA CABRERA, CNN HOST: Now, House investigators are specifically interested in a Trump draft executive order that would have the military seize voting machines, a draft put together in December of 2020, the same month Barr resigned.

Here to discuss is someone who literally wrote the book on Bill Barr, CNN senior legal analyst, Elie Honig. He's the author of "Hatchet Man, How Bill Barr Broke the Prosecutor's Code and Corrupted the Justice Department."

Elie, do you buy that Barr doesn't know much?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Well, Ana, Bill Barr has had a casual relationship with the truth over his history, as I lay out in the book.

But in this case, the point is not up to Bill Barr whether he knows things that are relevant. That's up to the committee.

We have actually heard this kind of response from a lot of people who the committee has reached out to. They have said, don't mind me, I don't have anything useful to you. That's not up to the witnesses. That's up to the committee.

Let's remember, Bill Barr was an attorney general through a crucial time, the months leading up to the election, the weeks after the election, as the Big Lie really took hold.

The committee has made clear they're looking beyond January 6, 2021. They're looking before and after that as well. So they may well have some relevant questions for Bill Barr to answer.

CABRERA: And Barr did ultimately come out and publicly reject Trump's election conspiracies before he resigned. He even told a reporter, Jonathan Karl, that it was all B.S.

You heard Zoe Lofgren say he's willing to help them find the truth. Do you think he's likely doing everything he can to help the committee?

HONIG: Well, it's hard to say. On the one hand, Bill Barr is in the midst of what I see as an image-rehabilitation tour.

And his coming out and saying that these claims about election fraud were, quote, "B.S.," is an important step forward.

By the way, that's something the committee way want him to testify about. Tell us, Mr. Attorney General, former Attorney General, did DOJ find any evidence of election fraud? The answer should be no.

But we should not forget, Bill Barr spent months before the election promoting the Big Lie. He lied to Congress about the threat of election fraud. He lied to the national media about it.

He's trying to make good now but he's trying to have it both ways.

CABRERA: Regarding that draft order, Barr resigned the same month that it was written. So it's possible, I guess, he was never made aware of it.

But whatever the mechanics of the draft order like this, would it go through the A.G.'s office in the draft stages?

HONIG: One of the reasons that presidents have historically enjoyed using the tool of the executive order, it's very unilateral. It's really just a matter of a president signing it.

Ideally, something like this should be run through the Justice Department. It should be run through the White House Counsel's Office.

That's a key question I would want to ask Bill Barr. Did you see this? Did anyone around you see this?

Bill Barr announced his resignation on December 14th. This draft executive order is dated two days later, December 16th. And Barr actually left a week after that.

I see why the committee is drawn right to that issue.

CABRERA: The committee chairman, Bennie Thompson, is aiming for public hearings in the spring, he says.

So what does that tell you about where the investigation stands, especially considering they're still expecting more White House records, there are a number of loose ends regarding Mark Meadows and Rudy Giuliani, Ivanka Trump, among others?

HONIG: It tells me the committee is getting to the next phase of this and realizes it's time to make the case to the American public.

Those public hearings I think will be crucial, Ana.

I can tell you from my own experience as a trial lawyer, as a prosecutor, it's one thing to read a report about what a witness said. But it's another thing to see that witness live in front of a camera or in front of a jury to bring what happened to life.

That's the challenge that the committee is going to face. Who do they call as a witness? Who do they put on the in front of the American public to make this story real?

CABRERA: They can't get some people to testified behind closed doors. The DOJ haven't even announced yet --

HONIG: Yes.

CABRERA: -- a decision on Mark Meadows, right, for contempt of congress referral.

You'll recall, for Steve Bannon, it took about three weeks after the House referral to indict him. It's been well over a month for Meadows already.

What do you read into that?

HONIG: We are day 41 of Mark Meadows watch. It's been 41 days since DOJ got this referral.

On the one hand, this is going to be a more complicated decision for DOJ than the decision to prosecute Steve Bannon, which it made some time ago.

On the other hand, we've got a really important ruling out of the Supreme Court last week that firmly rejected Donald Trump's executive privilege claims.

Now that's Mark Meadows' defense here. They're not exactly the same because the executive privilege applies, in one case, to the documents, in one case, to what Mark Meadows may actually now.

But that's a key piece for DOJ to know.

I can't understand why it's taking 41 days so far. I would be surprised if it takes much longer.

CABRERA: Elie Honig, maybe it will happen today. We'll wait and see. You'll be with us if it does.

Thank you so much, as always.

HONIG: Thanks, Ana. All right.

[13:34:35]

CABRERA: Three former police officers charged in the murder of George Floyd are now on trial. What they're facing, next.

(COMMERCIAL BREAK)

CABRERA: They stood by as George Floyd was gasping for air telling them, "I can't breathe." Right now, three former police officers are on trial in federal court on charges stemming from Floyd's death.

J. Alexander Kueng, Thomas Lane and Tou Thao are charged with violating Floyd's civil rights. They're accused of showing deliberate indifference to his medical needs as Officer Derek Chauvin was kneeling on Floyd's neck.

[13:40:03]

All three have pleaded not guilty.

CNN's Omar Jimenez joins us live from outside the federal courthouse in St. Paul, Minnesota.

Omar, update on the developments so far.

OMAR JIMENEZ, CNN CORRESPONDENT: Yes, Ana, just a few minutes ago, we just entered the lunch break here. Of course, the day has been dominated by openings statements.

Remember, Tou Thao, Thomas Lane and Alex Kueng, as you mentioned, are all facing at least one charge they were deliberately indifferent to George Floyd's medical situation back in May of 2020 when Chauvin's knee was on his neck.

And that Kueng and Thao failed to intervene and stop Chauvin. And that is where the prosecution stayed as part of their opening statement.

So I want to read part of it where Samantha Trepel, who is with the Civil Rights Division of the Department of Justice, said:

"Each made a conscious decision over and over again. They chose not to intervene and stop Chauvin as he killed a man. They chose not to protect George Floyd, the man they handcuffed."

Now as she told the jury what to expect coming up, she said, "You will see when the ambulance arrived, it was the paramedics, and not the defendants, who told Chauvin to get off."

Her opening lasted about 30 minutes, at which point we began to hear from the attorney for Tou Thao.

And part of what he argued is that the widely circulated video that Darnell Frazier put out does not show the full context, and that even the crowd that gathered didn't know the full context of what had happened prior.

And part of what he said specifically was, "The fact that something ends tragically does not mean a crime has been committed," as he acknowledged what happened to George Floyd that day was a tragedy.

Moving forward, we've heard from two of three former officer attorneys so far. When we get back from lunch, we're expecting to hear from the attorney for Thomas Lane, Earl Gray.

Once that is over, we're expected to head right into witnesses in what is expected to be a four-week trial -- Ana?

CABRERA: Omar Jimenez, thank you.

And in addition to this federal trial, the three former police officers also faced state charges in George Floyd's death. For more on the legal road ahead, let's bring in criminal defense

attorney, Sara Azari.

Sara, in this federal case, Derek Chauvin, he changed his plea to guilty back in December. He was the senior officer, while two of the officers, Thomas Lane and Alexander Keung, were rookies, who had been on the job for just a few days.

Could that bolster their defense, that they were following the lead of a veteran officer?

SARA AZARI, CRIMINAL DEFENSE ATTORNEY: Good to be with you, Ana.

Yes and no. On the one hand, this is a color-of-law violation that turns on inaction as opposed to action, all of them blaming Chauvin as the doer and the shot-caller, the fact that Thao was experienced but Lane and Kueng lacking experience.

But ultimately, the pivotal question here, Ana, in this trial, is, the idea that despite that lack of experience in the field, what did these officers know in terms of their training in the academy?

And just whatever limited experience they had in the course of that training as to how to respond in such a dire circumstance.

We have to remember, this was nine minutes and 29 seconds of opportunities where it goes to the consciousness of that decision, that the prosecution argued in opening, that they just failed to do anything.

They engaged in these P.S.'s, you know, maybe we should roll him over on his side. You know, he doesn't seem to have a pulse.

No. I think prosecutors will bring in law enforcement witnesses, not just from this department but also experts who will testify about what any officer, despite a scope of experience, should have done under these circumstances.

Perhaps they should have called for backup, perhaps they should physically intervened and peeled Chauvin off the Floyd's neck.

That's the pivotal question, what more they could have done that they consciously refused to do.

CABRERA: You do hear in at least one of the videos, Officer Lane asked Chauvin twice whether they should roll Floyd on his side to help with his breathing. Chauvin refuses.

Could that lessen Lane's culpability from a legal standpoint?

AZARI: Again, I think that would turn on Lane's training, what his duties were, and how he failed those duties consciously for nine minutes and 29 seconds.

Also, the idea that, we have to remember, Lane is the officer who started and triggered the sequence of events that ultimately led to this fatality.

He's the one that responded with Keung to the scene over a $20 counterfeit bill, pulled his gun within 15 seconds on Floyd, not saying who he is, why he's making contact, why he's arresting Floyd. So to me that's along a color-of-law violation as well.

It would be interesting to see how this jury, which is predominantly white, conservative, will weigh the credibility of officer testimony versus the prosecution's case.

CABRERA: Sara Azari, it's always great to have you with us. Thank you so much for being here.

[13:45:02]

Sarah Palin just tested positive for COVID-19, which means her defamation suit against "The New York Times" is now on hold until next week.

According to Reuters, the judge overseeing this trial disclosed Palin's results in court, adding she is, of course, unvaccinated.

The former vice-presidential candidate is suing the paper over a 2017 editorial that she says falsely linked her to a mass shooting in Tucson, Arizona. The times corrected the error and apologized for it.

The U.S. Supreme Court plans to take a look at race-based college affirmative action in college admissions, and some experts say the court's conservative majority could eliminate it. We'll disgust next.

(COMMERCIAL BREAK)

[13:50:35]

CABRERA: We are following some big developments out of the Supreme Court today. The justices announced they will reconsider the issue of race-based affirmative action in college admissions.

The high court will hear challenges to policies at Harvard and the University of North Carolina.

The group bringing the challenge argues that screening students based on race, amounts to unlawful discrimination.

Let's break it down with CNN legal analyst and Supreme Court biographer, Joan Biskupic.

Joan, affirmative action has survived prior challenges in the Supreme Court. But how do you think this court, with a 6-3 conservative majority, will approach this issue?

JOAN BISKUPIC, CNN LEGAL ANALYST: It is a whole new court. And you're right, since 1978, the Supreme Court has always upheld racial affirmative action but by narrow votes, Ana.

Let me just give you a little context here. The case is against -- this could really change higher education across America.

Because these practices have traditionally benefited black and Hispanic students. In the Harvard case, the challengers say those practices have come at the expense of whites and especially Asian- Americans applicants.

In the University of North Carolina, the challenge is related but it's not getting as much initial cost to Asian-American applicants, as the challengers at least presented.

I should tell that lower courts have sided with Harvard and the University of North Carolina. They've referred to precedent of the Supreme Court, the 1978 case, the 2003 case.

And most recently, in 2016, when the justices upheld affirmative action that allows racial consideration to enhance campus diversity, to enhance the educational experience for all students.

And what the court has allowed in the past is for race to be one of many criteria that admissions officers take into account.

But they can't do quotas. That was originally the 1978 decision. Race could be considered, but there could be no quotas.

Now what has changed? Getting to your initial question, Ana, this is a different court.

In 2016, when the justices narrowly upheld race-based affirmative action in higher education, Justices Ginsburg and Anthony Kennedy were in the majority.

They are now gone. Both succeeded by Donald Trump appointees. And even before, we had the three new Trump justices, this court was already very skeptical of any racial policies.

And, in fact, Chief Justice John Roberts had been working for more than a decade now on trying to end those.

So I think that this -- the fact that they've taken up a case that challenges lower-court decisions does not bode well for these national policies -- Ana?

CABRERA: This is one to watch for sure.

Joan Biskupic, thank you.

BISKUPIC: Thank you.

A man on a flight from Dublin to New York is charged in federal court, accused of wild behavior on a plane, throwing a beverage container, threatening the plane's captain, and even dropping his pants. That is next.

(COMMERCIAL BREAK)

[13:58:02] CABRERA: It sounds like an eight-hour flight from hell thanks to one passenger. And 29-year-old Shane McInerney is free on bond after being arrested and charged in federal court.

He's accused of refusing to wear a face mask, throwing an empty beverage can, which hit another passenger, and exposing himself. And those are just a few of the disruptions he allegedly caused.

CNN aviation correspondent, Pete Muntean, joins us now.

Pete, we know McInerney is from Ireland and this happened on a flight from Dublin to New York. How did this all start?

PETE MUNTEAN, CNN AVIATION CORRESPONDENT: So, interesting, Ana. Year three of the pandemic, we're seeing these incidents catalyze because of mask rules.

That has been the federal law of the land for almost a year now. Clearly still an issue with so many unruly passengers onboard commercial flights.

Just look at the charges against Shane McInerney. This is from the U.S. district court of the Eastern District of New York and it lays it out. It says that he was on this flight, Delta flight from Dublin to JFK in New York.

Repeatedly refused to wear a face mask, through a beverage can at another passenger. The documents also alleged that he kicked a passenger. And then mooned the flight crew after trying to make a fist at the captain.

This has to be one of the most egregious cases we've seen, Ana. Thankfully, federal authorities are involved here. We'll see how this plays out.

CABRERA: What kind of punishment could he face?

MUNTEAN: Well, he is charged with intimidating a flight crew, which could be 20 years in jail. It is a federal charge, Ana.

It is a bit of good news here because the Justice Department is trying to take this seriously. There have been so many unruly passenger cases already in 2022.

Look at numbers from 2021, 5,981 in total incidents and 4,290 involving face masks. That was more than 70 percent of all incidents in 2021.

[13:59:56]

In 2022, we've seen 151 incidents just so far this year. About 90 of them having to do with masks -- Ana?

CABRERA: What is wrong with people?

MUNTEAN: Yes. CABRERA: Pete Muntean, thank you for your reporting.

And that does it for us today. I'll see you back here tomorrow, same time.