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Supreme Court Hears Arguments In Pivotal Affirmative Action Case; Opening Statement Begin In Trump Org. Tax Fraud Trial; Today: Suspect In Attack On Pelosi's Husband To Be Charged; Some Dems Focus On Jan. 6 In Last-Minute Campaign Strategy; Rep. Cheney Releases Ad Attacking Arizona GOP Candidates; PA Election Results May Be Delayed By Mail-In Ballot Counting. Aired 10-10:30a ET

Aired October 31, 2022 - 10:00   ET

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

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ERICA HILL, CNN ANCHOR: Top of the hour on a Monday, I'm Erica Hill. Happening right now, the Supreme Court will soon hear arguments on two high stakes cases that could upend college admissions by eliminating or restricting race conscious programs. These are about affirmative action. We're live outside the court.

Plus, opening statements now underway in the criminal trial against the Trump Organization. We'll take a look at those charges against the former president's personal business. And today the man accused of attacking House Speaker Nancy Pelosi's husband expected to be charged with multiple felonies. We'll be live in San Francisco with more on what police say he brought with him when he allegedly broke into the Speaker's home.

First, though at any moment, the Supreme Court will begin hearing oral arguments as it considers two separate cases that will determine the future of affirmative action in higher education. CNN Justice Correspondent Jessica Schneider joins us now. So decades of precedent are on the line here, Jessica.

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Yes, the Supreme Court has upheld affirmative action for the past 45 years, Erica, but it could be poised to ban affirmative action nationwide. All eyes right now and ears around the conservative justices because it is very likely that they will in fact ban affirmative action.

In particular, the Chief Justice here John Roberts has been very outspoken about racial issues in many cases in past years. He kind of put it this way in one of the cases. He said, the only way to stop discrimination on the basis of race is to stop discriminating on the basis of race. So, all indications are that this court will, in fact, overturn precedent yet again.

But the arguments will be happening this morning starting probably in just seconds. The first case will be against UNC, the second case will be against Harvard. These cases have been winding their way through the lower courts for the past several years, all brought by a group called Students for Fair Admissions. They've been arguing that affirmative action unfairly discriminates against Asian Americans and white students in favor of blacks and minorities.

They have actually lost at the lower courts. But despite that, the Supreme Court will hear both cases today. The newest Justice, Ketanji Brown Jackson, she'll actually be recusing herself from the Harvard case. So only eight justices will hear that case. That's because Ketanji Brown Jackson, before she joined the court, she was on the Board of Overseers at Harvard.

So a lot is at stake here, Erica, a lot on the line. If this court overturns precedent advance affirmative action, that will mean that colleges and universities around the country will no longer be able to consider race as a factor in admissions. Many colleges have spoken out saying they can't achieve the racial diversity they need on their campuses without it.

So we'll see what ends up happening after roll arguments today. The decision is probably not likely until sometime next year, spring or summer. Erica?

HILL: Jessica Schneider with the latest for us, thank you.

Joining me now to discuss, Elliot Williams, former Deputy Assistant Attorney General for Legislative Affairs at the Department of Justice. So Elliot, when we look at what's at stake here and what the court will be considering, you noted that both sides are using Brown versus Board of Ed in their argument. That I think is a case that people remember. They know what that means, and yet both sides are using it how.

ELLIOT WILLIAMS, CNN LEGAL ANALYST: Yes. And well people know what it means, people think they know what it means, right? Brown versus Board of Ed, the case that sort of set-in motion the desegregation of schools in the 1950s. Well, one side, in effect is saying that Brown versus Board of Education was about equalizing things for black people, because of how schools were desegregated.

Well, the other side, the side suing the universities today saying no, no, no, no, no, that's not the case. Brown versus Board of Education envisioned a race neutral race blind society in which we don't even talk about or think about race. So they're both using this iconic Supreme Court case to sort of make their case on this very momentous day.

HILL: Any sense of how this is going to play out?

WILLIAMS: Yes. You know, it's really interesting, Erica, the Supreme Court in 1979, 2003, 2013 and 2016, had every opportunity to overturn the use of race in college admissions, but chose not to. The only thing that is different today, in 2022, is the composition of the Supreme Court and it appears based on sort of counting noses and analysis and prior statements of the justices that they are poised to do exactly that. You know, it's this kind of switching as a court that sort of helps leads the public to lose some faith in the Supreme Court because it's merely a personnel question. It's not a change in how -- nothing's changed in the law. It's merely just personnel on the court.

HILL: All right, Elliot, stay with me because I do want to get your take on another story as well, opening statements underway in the criminal tax fraud trial against the Trump Organization. The company is accused of a 15-year scheme of providing untaxed compensation for some employees.

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CNN's Kara Scannell covering this one for us. So important to point out, the former president is not a defendant in this case. There is some talk about what the impact though could be on his business. What specifically are the charges here?

KARA SCANNELL, CNN CORRESPONDENT: Well, Erica, the Trump Organization is facing nine criminal charges. They include grand larceny, tax fraud, and falsifying business records. So the Trump Organization, if it were to be indicted, it would not under New York law face any sort of dissolution or wouldn't be, you know, shut down in any way. But the fines that it could face would be at $1.6 million.

For the former president, though, this is the company he built from the ground up. He's been running it until he left office, but he still owns the company. And the idea that it could be convicted would be a black guy. It's something that, you know, clearly, he was not interested in pleading guilty. There were some discussions very preliminary about a plea deal to avoid this trial. But he was not interested in that. He wanted to move ahead according to sources, and go to trial because he did not believe the company did anything wrong and did not want to admit to any guilt.

So we're just waiting for opening statements to begin. One of the jurors appears to be late in this -- this morning. So that hasn't started yet. But it will begin with the Manhattan District Attorney's office opening statements. They're going to make the case that the Trump Organization didn't report or pay payroll taxes on some compensation and benefits that they gave to some executives. And one of those executives is the former Chief Financial Officer Allen Weisselberg.

He has pleaded guilty in this case. He's expected to be one of the earlier witnesses in the prosecution's presentation of their evidence, and he will admit that he didn't pay taxes on company cars and company apartment, as well as private school tuition for two of his grandchildren.

Next up will be the Trump organization's turn. There are two corporate entities that have been indicted so it will be two opening statements, two chances for them to talk to the jury. They're expected to say that Weisselberg was a rogue employee who did this to benefit himself but not to benefit the company. Then the prosecution will call their first witness. We're expecting that to be a current executive at the Trump Organization, the comptroller Jeff McConney. He received immunity for his testimony before the grand jury. He will be one of the first witnesses we believe the first witness on the stand for the prosecution, and he will be able to walk the jury through how these decisions were made at the Trump Organization and lay the groundwork for how this scheme allegedly works. Erica?

HILL: Kara Scannell with the latest for us outside court. Kara, thank you.

So Elliot, when we look here, in terms of the prosecution, Carol Laying (ph) out to who we're expecting to hear from first in terms of a witness. What are you expecting to hear from the prosecution?

WILLIAMS: You -- what the prosecution has to prove really is intent. And that's going to be the most challenging thing here for any prosecutor. They have to prove that the Trump Organization was aware that what they were doing was unlawful. And I think the defense can actually poke holes in that by saying, look, we had a pattern. We were sloppy in our record keeping. We certainly -- we're not trying to run afoul of the law.

And frankly, the whole process of picking a jury is, you know, getting folks -- if you're a defense attorney, getting in the heads of some of these folks, and getting them to sort of poke holes in the prosecution's case.

HILL: There's also -- you know, it's interesting, if found guilty here, this isn't a major financial hit to the company.

WILLIAMS: I think the fine is about $1.6, $1.7 million. So what actually happens at that point, if the prosecution is able to prove its case, is able to convince that jury.

WILLIAMS: Yes, no, they will have to pay these fines. You can't really get out of paying a fine. No one's going to go to jail based on this. That can happen at times when charging a corporation or an entity, a business entity with a crime. That's just not going to be the case here. It's really about fines.

Now, look, if the Trump Organization loses, they can appeal this to the higher court in the New York State Court of Appeals. But at the end of the day, this is really about money. And like you said, Erica, it's not a profound -- this is not going to see the end of the Trump Organization. It's just not.

HILL: Elliot Williams, always appreciate it. Thank you.

WILLIAMS: Thanks, Erica.

HILL: Turning now to the violent attack on House Speaker Nancy Pelosi's husband, Paul, at their San Francisco home today. The suspect David DePape is expected to be charged with multiple felony counts. CNN has learned exclusively, he entered the home with a bag of zip ties, duct tape, and a hammer.

CNN Correspondent Veronica Miracle is in San Francisco. So we are waiting on these charges. What are those potential charges the suspect is facing?

VERONICA MIRACLE, CNN CORRESPONDENT: Well, Erica, for those state charges, he is facing attempted homicide, assault with a deadly weapon, elder abuse among other felonies, according to the San Francisco Police Department. And in addition to those state charges, we're also told that federal officials are considering a federal charge against David DePape and that would be specifically related to the assault, kidnapping or murder of family members of certain federal officials. And if that charge is handed down, we could expect that as early as this week, according to a law enforcement source.

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Now the details that we're learning about this investigation, very disturbing. The San Francisco District Attorney's Office has told us that David DePape went upstairs into the bedroom where Paul Pelosi was sleeping. We're also told by sources that he tried to tie Pelosi up and was shouting, "Where is Nancy?" As you mentioned, he had brought zip ties and duct tape and the hammer that was used in the attack, according to sources.

We're told that Paul Pelosi is expected to make a full recovery, sources tell us. But he is dealing with very serious injuries, that includes a skull fracture as well as injuries to his arm and his hands after being attacked by that hammer by that man. And we did see Speaker Pelosi during this very difficult time, she quickly came out of her garage, got whisked away by her motorcade that was yesterday.

She has sent a letter to her colleagues talking about how this has been incredibly difficult for her family. Saying in a statement that, "Our children, our grandchildren and I are heartbroken and traumatized by the life-threatening attack on our Pop. We are grateful for the quick response of law enforcement and emergency services and for the life-saving medical care that he is receiving."

And DePape is expected to be in court on Tuesday for his arraignment. Erica?

HILL: Veronica Miracle, appreciate it. Thank you.

Joining us now, CNN Law Enforcement Analyst, former Secret Service Agent Jonathan Wackrow. Always good to see you. You know, as we look at this, there have been increased calls for better security, perhaps more widespread security when it comes to members and their families. You know, my colleague on Capitol Hill Melanie Zanona pointing out that the protocols, security protocols just haven't kept pace with the threats.

Based on what we know, are there -- is there the funding? Are there the resources to provide the security that may be needed now in 2022?

JONATHAN WACKROW, CNN LAW ENFORCEMENT ANALYST: Well, you know, obviously, the resources are not there, Erica. We actually have to find those resources and we have to apply the right level of protection based upon threats that our lawmakers are facing every single day. This is important because it's not just about protecting an individual, a single lawmaker, a member of leadership, this is about protecting our democratic process. And what you've seen is that our democracy has literally been under attack on both sides from the Republicans and Democrats over the last two years because of this rise in political violence.

Just this summer, you saw Lee Zeldin while campaigning was physically attacked on stage. We saw that outside of Justice Cavanaugh's house in Washington's Metropolitan District that someone was arrested with a weapon who literally stated, I'm going to kill a justice. And now we see that the spouse of the number two person in line to the office of the presidency was attacked in their home, right?

So we know what the threat environment looks like today. We have all of these warnings. Even going back to January of this year, DHS put out an intelligence memo stating that members of Congress were specifically subjected to, you know, online attacks that could lead to physical violence. So we know the threat environment, we know the warnings are out there. Protection has a purpose, and we need to apply it today before something tragic -- even more tragic than what happened to Mr. Pelosi occurs.

HILL: Right. So you paint the picture of why it needs to be done, but you're also making the point that the resources aren't there. So at that point, what is the answer? What are some other fix -- fixes perhaps, you know, when it comes to judges, right? There been especially dealing with it not even just Supreme Court justices, but other judges, there has been a push, of course, to remove private information online, talk about doing the same for lawmakers. What would something like that change?

WACKROW: Well listen, what it does is it makes a gathering information in intelligence in really a pre-attack, you know, methodology more difficult, right? Like I shouldn't be able to figure out with ease, where a Supreme Court justice lives or a member of Congress lives. You interrupt that chain of attack, interrupt that intelligence gathering that will make it more difficult to focus attention, you know, by nefarious individuals on these targets.

But again, we have to take a different approach, right. I think that, you know, Capitol Police has its challenges because they have so many members of rank and file and leadership. But we have to take a more collective approach between state, local and federal assets working together to provide the necessary protection of our lawmakers and again, our democratic process.

HILL: What concerns you most this morning specially when we look at what we know. So John Miller made the point earlier on New Day talking about the fact that there were -- that this man came in with zip ties and duct tape. That indicates someone who planned to maybe be there for a while or perhaps it could have been looking at some sort of a hostage situation. Would you agree with that? WACKROW: Well, absolutely. This is -- you know, Mr. Miller was correct. I mean this is literally the definition of premeditated, right?

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Somebody actually took the time to think about, OK, what am I going to do when I, you know, enter into this house? I'm bringing zip ties, I'm bringing duct tape, bringing a hammer to get into the house and use it as a potential weapon. And what do I do when I'm inside? I look for my target, right?

I go through, I searched the house, this isn't a crime of opportunity, where I smashed the back window, go in and take something of value. This suspect went in, they search the house, they found, Mr. Pelosi, and they were actually trying to make target identification saying, where is Nancy?

All of this eliminates the narrative that this is a crime of opportunity broadly, or that this is somebody that is just caught up, you know, the criminal activity of San Francisco and lack of prosecutorial consideration in the past, all of that so limited. This was a premeditated attack on a key member of Congress that we know that full stop.

HILL: Jonathan Wackrow, always appreciate your insight. Thank you.

WACKROW: Thank you, Erica.

HILL: Well, in case you lost count over the weekend, I'm here for you, eight days to go now until the midterms. And some Democratic groups are hoping that a last-minute campaign strategy shift could be just what they need to sway undecided voters. Plus, later nationwide grief in South Korea as a country mourns the deaths of more than 150 people killed in a crowd surge during a Halloween celebration.

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HILL: Just over a week now until the official election day, Democrats in tight races now trying to switch things up with their strategy with a late push to tie these midterm elections to the January 6 attack and the threats -- that could sway voters who may still be on the fence.

CNN's Isaac Dovere has new reporting on all of these. So tell us a little bit more about this, I guess last ditch effort to try to switch the messaging again and bring more people in?

ISAAC DOVERE, CNN SENIOR REPORTER: Well, the Democrats are looking at what's happened over the last couple of months. And they admit that they have failed to get people to think about democracy as a voting issue. They failed to connect it to people's lives in a way that matter that connected with the economic issues that are obviously at the forefront of a lot of people's minds. And so what they're hoping to do is in these last couple of days before the midterm elections, and as early voting is going on, reaching out to voters who are maybe not on the fence about who they vote for, but on the fence about whether they're going to vote at all, going after those voters who turned out in 2018 and 2020 for Democrats thinking that they were doing something to preserve the country and they're saying we need you one more time, we need you to think about it in this way.

They're going to black voters in a lot of places and saying there was an attempt to throw out our vote. And we need to connect that to what you need to do now. Other key Democratic groups thinking that in these what may be very close elections all over the country, those couple of 1,000 votes could be the difference.

HILL: We'll be watching to see if that pays off for them. Isaac Dovere. appreciate the reporting. Thank you.

DOVERE: Thank you.

HILL: Joining me now to dive a little deeper, the Managing Editor for Axios Margaret Talev, and National Political Correspondent for McClatchy David Catanese. Good to see you both. So Margaret, picking up where Isaac left off there, it's interesting. Last week, maybe a little bit of the week before, we started to see the shift of Democrats saying, oh, yes, we need to talk about the economy more, and we need to do it in a different way.

Now this week, it's, wait, we're going to try. Democracy is really important. We're going to try one last push here with democracy. Is there anything that you've seen that a week out, this is going to move the needle? Why now?

MARGARET TALEV, CNN POLITICAL ANALYST: Erica, you're right to notice all of this. It's one week out. And I think what we're seeing is a little bit of throw everything up and see what sticks. It may depend a little bit race by race. I think that people making these closing arguments, could make a difference.

Also, former President Obama sort of maybe perhaps uniquely gifted to shape that democracy message. We're seeing Liz Cheney, Republican Liz Cheney, now pushing in states like Arizona to try to say, hey, democracy is really more important than partisanship in a moment like that. So I think you're going to see this kind of dual messaging.

And the question is, to some extent will the attack on Paul Pelosi and tying that to kind of Gen 6 violent rhetoric? Is there a way to tie that argument to the election denier argument and just cast all of that as a democracy should override partisanship? There's going to be an effort to do it. I don't know whether it will work.

HILL: Yes, I guess we'll know in about -- I'm not going to say eight days, because let's be honest, it could be a little longer than that. But, you know, maybe by the end of next week.

When we look at, you know, as Margaret just mentioned, Liz Cheney, right, in Arizona with this new attack ad, Kari Lake responded that basically saying, hey, thanks, Liz Cheney. I've raised plenty of money off of that ad. David, when we look at this, is Liz Cheney an effective surrogate?

DAVID CATANESE, NATIONAL POLITICAL CORRESPONDENT, MCCLATCHY: I think it's very tough. I also think that I talked to voters in Pennsylvania last week, people are just sick of the ads. They're getting text messages, they're getting emails. There's so much money in this system, in the broader point that you just raised with Margaret. They're trying everything. Everyone is now plowing money into every type of ad. Every surrogate is going to be out there.

The question is, what really breaks through? And you also have to point out that 22 million people have already voted. So there are fewer people that are willing, even want to hear messages or be convinced.

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And I think at this point, you're talking to your partisan voters on both sides, you're trying to get those people out. But really, in some of these close races, these 50-50 races, senators in Arizona, Nevada, it's about trying to get the person that's already going to vote for you to make sure they turn on that ballot by November 8.

HILL: Yes, it is interesting way to look at those early numbers of just -- the sheer numbers of people who vote, especially in places like Georgia, as well. And, Margaret, you were talking about, you know, one thing that's definitely different in these waning days is the messengers that Democrats are using.

Former President Obama, President Biden, who had largely stayed away from campaigning also out there on the trail. When we see that push, and even sort of more events being added here, I mean, does that continue straight through for the next eight days do you think?

TALEV: Yes. And I think, look, this is -- just as David mentioned, a matter not just of messaging to persuadable, but turning out the people that you're counting on to vote. And I think Maryland is one state we're all watching. First of all, Biden's closing state is not going to be Arizona or Georgia.

That tells you everything you need to know about the moment but also a very dynamic leader there could be the African American governor of Maryland, if the polls are correct. Wes Moore and author and Afghanistan veteran would be leading what polling suggests right now is an all basically people of color top of the ticket, including his running mate, including the attorney general, that has a message that Joe Biden wants to get behind and that is the state where it appears to be safe for him to get behind that message.

You're looking at a state now in Maryland, where about one out of three of the expected voters to turn out are African American, and where it could be the kind of message that Democrats so desperately wish that they could take into Georgia, into Pennsylvania and to Arizona. But perhaps, messaging around Maryland will at least send the signal they want to send or to other parts of the country.

HILL: David, I'm curious, you know, in your reporting in your time there in Pennsylvania, how much messaging is out there from officials and candidates about the fact that they will likely not know the results, certainly for Senate come Tuesday night, come election night, because of the way mail-in ballots have to be counted, and it's not the only state that has, you know, very specific rules around that. Do you think there is enough out there for voters so that this doesn't turn into sort of a 2020 moment of people being shocked?

CATANESE: We're short trying. I mean, I posted a story last week on this basically with an interview with the Secretary of State of Pennsylvania saying we are not going to have a winner in the Senate race on election night. Remember, it took four days for news outlets to call Pennsylvania for Joe Biden in 2020. And that was basically an 80,000-vote difference.

If the Mehmet Oz, John Fetterman raise is as close as these polls are suggesting, Fetterman has a narrow lead, but it looks like this thing is closing. Republicans are very confident in Pennsylvania even though the polls don't reflect it. I think we just need to tell people that you're going to have to wait.

It doesn't mean anything nefarious is going on. It just takes time in Pennsylvania because they are not allowed to process and open mail-in ballots until the polls close. So you're also going to have a question of the red mirage. I think we have to underline this. The most likely scenario in Pennsylvania. The first votes you see on the board, you're probably going to see big Republican advantages.

And remember, Donald Trump was up for most of the night Pennsylvania. Democrats are very worried. And then the mail-in votes came in. And right now Democrats, it is very heartening, if you're a Democrat, they're doing very well with the mail-in vote. There's about 700,000 early votes cast in Pennsylvania.

Democrats, those are 70 percent Democratic votes. So they're backing that vote, but they don't count that vote until later, which is a little confusing for people. But I think it's important for us in the media --

HILL: Yes.

CATANESE: -- to keep underlining this, so people realize it's not anything nefarious when the results change into Wednesday, or it could even be Thursday of next week that we're still counting those ballots.

HILL: That they're following the rules.

TALEV: And in Georgia, you could be looking at a runoff, so we may not know until December --

CATANESE: Yes.

TALEV: -- in Georgia --

HILL: Yes.

CATANESE: Absolutely.

TALEV: -- if that gap isn't closed. Yes.

HILL: It's all feeling very familiar, my friends, isn't it? Margaret, David, good to see you both this morning. Thank you.

TALEV: Thanks, Erica.

CATANESE: Thanks.

HILL: Still come here, a Halloween celebration turns deadly in South Korea. We're live in Seoul as families including too here in the United States mourn the deaths of their loved ones killed in that crowd.

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