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Supreme Court Justice Stephen Breyer to Retire; U.S. Sends Written Response to Russian Demands; Schumer: Supreme Court Nominee to be Heard "With All Deliberate Speed"; DOJ Investigating Fake 2020 Elector Certificates Declaring Trump Won; Trump Lawyer John Eastman Ordered to Respond to 1/6 Committee Subpoena. Aired 1:30-2p ET
Aired January 26, 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]
JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: If the president were to get a second nomination, I would be very -- I think she would be a very likely choice.
But when you look at the political, when you look at the academic, when you look at jurisprudential issues, Ketanji Jackson seems like a very solid pick to be confirmed and serve a long and significant tenure.
ANA CABRERA, CNN HOST: Abby, you could look at this a couple of ways politically for President Biden.
Today, he's holding this meeting, is immediately just facing a barrage of questions about the Supreme Court when he wanted to focus on the economy today. He's dealing with several stalled agenda items.
Did this just become a top priority?
ABBY PHILLIP, CNN SENIOR POLITICAL CORRESPONDENT: Absolutely. Sure President Biden wanted to talk about Build Back Better today. That's fine.
But I think for this particular president, where he is today with a need to give something that is of great importance to his supporters, people who put him in office, especially black women, this is an important moment.
It's a moment they've been waiting for, frankly, because Democrats have been anxious about the seat.
But also because that promise to put a black woman on the court is very, very important to the people who put Biden in office.
And so I think you'll see the White House moving really quickly to get this done.
And I think Jeffrey is right. A lot of people are talking about a Judge Ketanji Brown Jackson today because of all the reasons he laid out.
But also because she's someone who could get through this process very quickly.
If Biden wants to turn back to Build Back Better, the fastest way to do that is to get a nominee named, put through the process, and confirmed as quickly as possible.
And if history is any guide, the Senate has proven that they can do that very, very quickly, literally, in a matter of weeks.
I think you'll see Democrats really pushing for something with a lot of speed so they can get back to the rest of business.
CABRERA: Do you anticipate any defections from Democrats or can the president count on all 50 votes? I'm thinking of Manchin and Sinema and the dynamics at play recently.
PHILLIP: I think Biden can likely count on all 50 votes.
Look, Judge -- especially if it's Judge Ketanji Brown Jackson, who was just confirmed. She was just confirmed with a bipartisan vote.
So presumptively not only could you count on the Democrats. But you could also count on those Republicans who came over.
Because everyone knew at the time that she was likely going to be on a short list for the Supreme Court. And so that first vote was symbolic of a vote that would come later.
And so I think you can see that there would be a lot of pressure even on Republicans to explain if they voted for her months ago why would they not vote for her again if she is, in fact, Biden's pick.
There are a lot of other names on the list who are extremely qualified. And Judge Childs was someone who Whip Clyburn mentioned and has been pushing privately and publicly.
So it's not a done deal. But there are a lot of people there who have a lot of supporters on Capitol Hill. And I think even Republicans would find difficult to push back on, on the merits.
Politics being something totally different. And we all know what the situation in Washington is on politics.
CABRERA: Yes. And today's announcement is sort of a reminder of how important those two Senate seats, pickups from Georgia, were for the Democrats when it come to this broader picture.
Thank you so much, Abby, Jeffrey, Paula. I really appreciate all of you.
[13:33:37]
Up next, the U.S. has just delivered a highly anticipated written response to Russia. It's the latest attempt to deter an invasion of Ukraine as U.S. troops are being readied for potential deployment. We'll discuss next.
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CABRERA: Turning now to Ukraine and Russia, with the situation that President Biden warns could become the largest invasion since World War II.
A short time ago, the U.S. delivered a written response to Russia's military demands. No diplomatic breakthrough is expected and tensions may only climb higher.
CNN's Kylie Atwood is at the State Department and Nic Robertson is in Moscow for us.
Kylie, what are you learning about what's in this written response to Russia? We know Russia has been asking for certain commitments.
KYLIE ATWOOD, CNN NATIONAL SECURITY CORRESPONDENT: Yes, well, Secretary of State Tony Blinken laid out that the United States believes what they put forth here is a serious diplomatic path forward, the opportunity for that should Russia choose it.
What the United States did was put pen to paper with regard to what they've already been saying.
Identifying the areas they think the U.S. and Russia can work together on issues of security, such as placement of missiles in Europe, such as arms control, such as more risk reduction tactics that can be put into place.
Those areas were identified in this document that the U.S. ambassador in Russia, Ambassador Sullivan, gave to the Russian Foreign Ministry today.
Now, what was also laid out clearly in the document were the core principles of the United States.
[13:40:03]
Of course, one of those is that the U.S. supports, by all measures NATO's open-door policy, which would, of course, potentially allow for Ukraine to join in the long term.
And just listen to what Secretary Blinken said about that aspect during his remarks earlier today.
(BEGIN VIDEO CLIP)
ANTONY BLINKEN, SECRETARY OF STATE: That it reiterates what we said publicly for many weeks and, in a sense, for many years, that we will uphold the principle of NATO's open door. NATO's door is open, remains open, and that is our commitment.
(END VIDEO CLIP)
ATWOOD Now the secretary said that President Biden was intimately involved in crafting this document, making some of his own edits before, of course, it was shared with the Kremlin.
And there were a lot of things the State Department did before sharing this document, consulting with allies, consulting with NATO, who also put forth a document to the Russians today. And they also shared it with members of Congress.
Secretary Blinken will be briefing members of Congress on this later today.
The United States is not putting this document out publicly, though U.S. officials tell me they are very clear eyed about the fact Russia could do so.
Blinken said the reason the United States isn't doing it is because they think there's some degree of positive nature to these diplomatic discussions if they can keep them in private.
Of course, a question as to if that will happen.
But also, we will watch and wait to see what the Kremlin responds to what the United States has now put on paper for them.
CABRERA: And while we wait for that specific response, we do know diplomats have been meeting from Russia, Ukraine, Germany, France. They've been meeting in Paris today.
Nic, what do we know about that? What happened?
NIC ROBERTSON, CNN INTERNATIONAL DIPLOMATIC EDITOR: Well, we believe the talks went longer than originally scheduled.
There was due to be a press conference given by the Russian representative. That is several hours overdue now. It is not clear what conclusions could be made by that.
But we do know that the Russians were going in there with the intent of pressuring the Ukrainian representative to meet with the Russian- backed pro-Russian separatist in the east of Ukraine and in the Donbass region.
And this is something that Ukrainian officials have resisted. There's an underlying believe on the Ukrainian side that what Russia really intends to do here is basically annex off that area of Donbass.
Russia has given over half a million Russian passports to Ukrainians living in that area on Donbass.
And the indications are Russia may use what happens in the Donbass as a reason to get more militarily engaged in what's going on in Ukraine directly.
Those separatists from that area were on state television today appealing for the Russian government to give them weapons support because they see weapons systems going to Ukrainians from the United States.
So they're making that a cause for themselves to call for weapons to come from Russia. We don't know how the talks progressed.
But this was the first time the Russians and Ukrainians were going to be in the same room since December of 2019. And given the current tensions, it was always going to be frosty.
How it progresses, that's still very unclear at the moment.
CABRERA: Nic Robertson, Kylie Atwood, I've got to leave it there for now. Please let us know if there are any major breakthroughs throughout this day and this hour.
Back to our breaking news now. U.S. Supreme Court Justice Stephen Breyer's plans to retire.
I want to go back live to Capitol Hill and our chief congressional correspondent, Manu Raju.
Manu, you have new details on a timeline to replace him?
MANU RAJU, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Yes, that's right. Chuck Schumer, the Senate majority leader, is looking at a quick timeframe to replace Justice Stephen Breyer.
I'm told from a source familiar with, the thinking that Schumer will try to follow the same timeframe Republicans employed when they pushed through the confirmation of Amy Coney Barrett in 2020 just days before the 2020 election.
At that time, Democrats pushed back and they opposed her because it was too close to the election.
They argued that Mitch McConnell had set that precedent back when he refused to move forward on President Obama's nominee in 2016 of Merrick Garland to serve on the Supreme Court because it was too close to the election, in McConnell's view back then.
But nevertheless, Schumer now says that he is going to move quickly, according to a person familiar with his thinking.
Looking back at that timeframe, the Amy Coney Barrett timeframe, remember, Ruth Bader Ginsburg died on September 18, 2020. About a week later, on September 26, Barrett was nominated by President Donald Trump and confirmed on October 26, 2020.
About a month-long process they had successfully confirmed her to the position after she was nominated.
[13:45:02]
So it remains to be seen how quickly Joe Biden will pick Stephen Breyer's replacement. We do know they announced that tomorrow. And at that point, Biden will have to make a decision.
I'm also told, Ana, Democrats expect to move forward on this nomination even before Breyer officially steps aside. Breyer is expected to say that he'll retire at the end of his term. But Democrats believe they can still move, have the hearings, have the
process before he steps aside, so that when he eventually steps aside, that new nominee, assuming she, expected to be a woman, is confirmed to that post, can take that position.
Expect this to happen quickly. Democrats are talking of pushing this through. And if they keep their party together, can certainly do just that -- Ana?
CABRERA: And we heard from Jeffrey Toobin that there's precedent to start these hearings when there's a new nominee named, even if Justice Breyer continues to serve prior to his official retirement.
Manu Raju, thank you very much for that update.
In a rare move, the DOJ confirms it is investigating fake Electoral College certifications, falsely declaring a Trump victory. Certificate, sources say, were part of a scheme by the Trump campaign to overturn the 2020 election.
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[13:51:02]
CABRERA: In a CNN exclusive interview, we are learning the Justice Department is investigating fake Electoral College certifications that falsely declared former President Trump the winner of seven swing states that he lost in 2020.
These phony certificates contain the signatures of Trump supporters who falsely claimed to be the rightful electors in the states you see there on your screen. Again, all states won by President Biden.
CNN crime and justice correspondent, Evan Perez, is joining us.
Evan, you sat down for this exclusive interview with Deputy Attorney General Lisa Monaco. This is quite the revelation.
EVAN PEREZ, CNN CRIME & JUSTICE CORRESPONDENT: It is. Because the Justice Department has been very reluctant to even acknowledge any specific aspects of this investigation that have been ongoing, Ana.
And so one of the things we wanted to know was whether the Justice Department was responding to some of the calls from the states, state prosecutors who were making referrals to the Justice Department.
Because they believe that these fake electoral certificates were essentially a violation of federal law. And they wanted the Justice Department to take a look at them.
The deputy attorney general sat down with me and we talked about this.
Take a listen.
(BEGIN VIDEO CLIP) LISA MONACO, DEPUTY U.S. ATTORNEY GENERAL: On the issue you raised in terms of fraudulent electoral certifications has been reported. We've received those referrals. Our prosecutors are looking at those. And I can't say anything more on ongoing investigations.
But more broadly, look, the attorney general has been very, very clear. We are going to follow the facts and the law wherever they lead to address conduct of any kind and at any level that is part of an assault on our democracy.
(END VIDEO CLIP)
PEREZ: And, Ana, the importance of those words "at any level" is obviously pointing to the fact that there are close associates of the former president, Rudy Giuliani and others, who were orchestrating this effort across those states.
As you know, there were some of these people who were involved who were smart enough to change the language to try to at least cover themselves legally. Others did not.
And so we'll see where this investigation goes.
CABRERA: We know hundreds of people have faced charges in the January 6th DOJ investigation, but not necessarily at the higher-up level. More on the ground-floor level.
PEREZ: Yes. Right.
CABRERA: Those who were on scene at the capitol.
Like you said, this could be significant.
Thank you, Evan Perez.
Let's break it down with CNN's senior legal analyst and former federal and state prosecutor, Elie Honig.
Elie, we didn't hear a lot from Lisa Monaco in that Q&A, but it was significant because it is so unusual, right, for the Justice Department to confirm even just confirm an investigation.
ELIE HONIG, CNN SENIOR LEGAL ANALYST: Yes, Ana. I want people to understand how extraordinarily rare it is to hear what we just heard, Lisa Monaco, tell Evan.
When you're trained from day one as a prosecutor, anytime you're asked about an any ongoing investigation, it's cannot confirm or deny, cannot comment on a pending matter.
You and I and our viewers have heard that from DOJ countless times over the years.
In fact, normal DOJ policy is to not confirm or deny anything except in extraordinary circumstances.
So this was a conscious decision by DOJ, by Lisa Monaco.
And I think what's going on here is they understand. They operate in the real world. And every once in a while, the Justice Department has to reassure the American people, we're aware of this, we're on it, we're taking a look at it.
CABRERA: We don't know when they started their investigation. Still, Elie, here we are, a year later.
Bottom line, do these fake certificates constitute a federal crime?
HONIG: I can see ways they absolutely could. I'm going to do what prosecutors do now, which is typically you look for the straightest line to a charge.
What charge is the most easily applicable with the fewest complications? It is a crime under federal law to make a false statement or to submit a false document to a federal agency.
[13:55:05]
If you or I were to submit a false document to Social Security, to Medicare, to Medicaid, to the IRS, and did it intentionally, that would be a federal crime. Same here.
These documents went to the National Archives. If they were sent in order to try to trick or deceive the National Archives or Congress, that would be a federal crime.
The defense that Evan alluded to, that was going to be, well, we were just sending them "in case." Just in case Congress or the courts threw out the Biden electors, these were going to be the Trump electors.
So that will be the argument we hear both ways and that will be the issue that prosecutors have to wrestle with.
CABRERA: As we look at that map with the seven different states involved, then the actual fake documents put together, we've learned Rudy Giuliani led this effort with bogus electors.
He has been subpoenaed by the January 6th committee. But what kind of legal trouble could he face?
HONIG: Wow. You need a note pad to keep track of all this stuff with Rudy, all of the problems that he's facing right now.
His law license has been suspended in New York and D.C. He has been named for millions of dollars in civil suits brought by voting technology companies.
And in relation to January 6th, he has received a subpoena from the January 6th committee, which, as far as we know, he's not yet complied with.
Most concerning I think for Rudy Giuliani is he's under criminal investigation for potential lobbying violations unrelated to January 6th by his former office, my former office, the Southern District of New York.
And now this, this investigation, based on reporting, seems likely to center around Rudy as well.
So he's got all sorts of legal problems mounting up. And accountability seems to be on its way for Rudy.
CABRERA: Let's quickly pivot to another lawyer involved in Trump's Big Lie, John Eastman.
Remember, he wrote that step-by-step coup instruction memo trying to get Vice President Pence to block the official electoral count in Congress.
He tried to sue to block a subpoena. A judge just ruled overnight that he must comply. How significant is this?
HONIG: Yes, so John Eastman was really at the heart of the coup plotting as well. This judge had very little patience for Eastman's argument.
And most importantly, during this argument, John Eastman acknowledged he was acting and serving as Donald Trump's lawyer when he wrote what we now call the coup memo, this bogus blueprint for how to overthrow the electoral votes.
That's a really important concession because it takes away any argument that Eastman was sort of just freelancing or acting on his own.
No. He has now said he did this on behalf of Donald Trump.
CABRERA: And now he has to turn over some 19,000 e-mails that were potentially sent from his university, Chapman University account.
Is attorney/client privilege going to be a problem?
HONIG: So, this is what the court and the parties have to review for now.
I don't believe attorney/client privilege necessary applies. For one, there is some law that says Congress does not even have to respect attorney/client privilege.
They've grappled with this in the past. They're separate from the courts.
Also, it doesn't apply to any communications that were in furtherance of a crime. So if the court concludes there was some broader crime going on here, then the attorney/client privilege will not apply.
CABRERA: Elie Honig, always appreciate you. Thank you.
That does it for us today. We're back, same time, same place tomorrow. And you can always join me on Twitter, @AnaCabera.
The news continues right now with Alisyn and Victor.
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